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Full text of "North Carolina Register v.9 no. 4 (5/16/1994)"

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MAY 18 1994 

KATHRINE R EVERETT 
LAW LIBRARY 



The 



NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



EXECUTIVE ORDERS 



IN ADDITION 
Labor 
NFDES Permit 



S 



! TlORTlf , 



COIta 
TITUl 



PROPOSED RULES 

Cosmetic Art Examiners 

Crime Control and Public Safety 

Environment, Health, and Natural Resources 

Justice 

Labor 

Transportation 



LIST OF RULES CODIFIED 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: May 16, 1994 



Volume 9 • Issue 4 • Pages 227 - 305 



INFORMATION ABOUT THE NORTH CAROLmA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh.N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Register before the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Conunission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAQ. 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 



Under certain emergency conditions, agencies may issue ten ' 



rary rules. Within 24 hours of submission to OAH, the Codifi« 
Rules must review the agency's written statement of findings of 
for the temporary rule pursuant to the provisions in G.S. 150B-21 
the Codifier determines that the findings meet the criteria in 
150B-21.I, the rule is entered into the NCAC. If the Codi ,^ 
determines that the findings do not meet the criteria, the rule is retui 
to the agency. The agency may supplement its findings and resul 
the temporary rule for an additional review or the agency may resf 
that it will remain with its initial position. The Codifier, thereafter, 
enter the nile into the NCAC. A temporary rule becomes effec 
either when the Codifier of Rules enters the rule in the Code or or 
sixth business day afler the agency resubmits the rule without cha 
The temporary rule is in effect for the period specified in the rule oi 
days, whichever is less. An agency adopting a temporary rule i 
begin rule-making procedures on the permanent rule at the same 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMESISTRATTVE CODE 

The North Carolina Administrative Code (NCAQ is a compila 
and index of the administrative rules of 25 state agencies anc 
occupational hcensing boards. The NCAC comprises approxinu 
1 5,000 letter size, single spaced pages of material of which appi 
mately 35% is changed annually. Compilation and publication ol 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state ageni 
assigned a separate title which is further broken down by chap 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
dollars and 50 cents ($2.50) for 10 pages or less, plus fif 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volimies, totalin; 
excess of 15,000 pages. It is supplemented monthly 
replacement pages. A one year subscription to the 
publication including supplements can be purchased 
seven hundred and fifty dollars ($750.00). Individual 
umes may also be purchased with supplement service, 
newal subscriptions for supplements to the initial public; 
are available. 

Requests for pages of rules or volumes of the NCAC shoul 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, i 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Vol 
1, Issue 1, pages 101 through 201 of die North Carolina Registeris: 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 









I 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



This publication is printed on permanent, 
acid-free paper in compliance with 
as. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 44-45 227 

II. m ADDITION 

Labor 230 

NPDES Permit 232 



ni. PROPOSED RULES 

Crime Control and Public 
Safety 

State Highway Patrol ....... 243 

Environment, Health, and 

Natural Resources 

Departmental Rules 254 

Environmental Management .... 258 

Water Resources 255 

Justice 

State Bureau of 

Investigation 234 

Labor 

Mine and Quarry Division 239 

Licensing Board 

Cosmetic Art Examiners 280 

Transportation 

Motor Vehicles, Division of .... 276 



IV. LIST OF RULES CODIFIED 



281 



V. RRC OBJECTIONS 285 

VI. CONTESTED CASE DECISIONS 

Index to AU Decisions 288 

Text of Selected Decisions 

93 OSP 1097 292 

VII. CUMULATIVE INDEX 304 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

EfiFective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Ride 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Re\iew Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 

Revised 03/94 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 44 
NORTH CAROLEVA COMMISSION ON 
BUSINESS LAWS AND THE ECONOMY 

WHEREAS, the State of North Carolina is 
committed to the development of a strong economy 
for the people of the State, to increasing the ability 
of North Carolina's people, communities, and 
enterprises to compete successfully in an increas- 
ingly competitive marketplace, and to insuring the 
long-term economic prosperity and quality of life 
for the citizens of the State; and 

WHEREAS, businesses exist in a complicated 
legal environment which can be unduly restrictive 
and hinder their ability to operate and grow and 
which can discourage new businesses from locating 
in the State; and 

WHEREAS, there is currently no state govern- 
ment organization, board or commission dedicated 
exclusively to a comprehensive study of state 
statutes, court opinions, and agency rules and 
regulations affecting the operation of business for 
the purposes of (1) ensuring that existing statutes, 
rulings, rules and regulations are supportive of 
sound purposes, are meaningful in light of chang- 
ing business and legal environments, and are 
necessary and relevant and (2) determining wheth- 
er new statutes, rules and regulations may be 
needed to help assure that North Carolina main- 
tains a legal environment which provides the 
flexibility and support to allow businesses to 
operate successfully in this state and to attract 
them to locate here; and 

WHEREAS, building the long-term economic 
capacity for the people, communities, and enter- 
prises of North Carolina requires concerted, 
coordinated and cooperative effort by those who 
determine state laws and regulations and those who 
work in private enterprise and bear the responsibil- 
ity of operating businesses in the State consistent 
with said laws, rules and regulations; 

NOW, THEREFORE, by the power vested m me 
as Governor by the laws and Constitution of the 
State of North Carolina, IT IS ORDERED: 

Section L Establishment and Composition. 

The North Carolina Commission on Business 
Laws and the Economy is hereby established. The 
Commission shall be composed of twenty-three 
members appointed by the Governor as follows: 

(a) Nine members representing public and 



private corporations. 

(b) Four practicing attorneys in the State of 
North Carolina, one of whom shall serve 
as Reporter for the Commission. 

(c) One member of the North Carolina 
House of Representatives. 

(d) One member of the North Carolina State 
Senate. 

(e) One representative from North Carolina 
Universities. 

(f) One member of the North Carolina Eco- 
nomic Development Board. 

(g) One representative of the Busmess Sec- 
tion of the North Carolina Bar Associa- 
tion. 

(li) One representative of the North Carolina 
Citizens for Business and Industry. 

(i) The Secretary of State, or his designee 

(j) The Attorney General, or his designee. 

(k) TTie Lieutenant Governor, or his 
designee. 

(1) The Secretary of the Department of 
Commerce, or his designee. 

Members shall serve at the pleasure of the 
Governor. The Attorney General shall serve as 
Chair of the Commission. 

Section 2. Purposes and Duties. 

The purposes of the Commission are to 
recommend to the North Carolina General 
Assembly any needed changes in existing statutes 
and regulations which affect the operation of 
businesses in North Carolina, particularly Chapter 
55 of the North Carolina General Statutes entitled 
"The North Carolina Business Corporation Act," 
and to recommend any needed new statutes, rules 
and regulations designed to assure that North 
Carolina offers a legal environment which provides 
the flexibility and support to allow businesses to 
operate successfully in this state and which will 
attract them to locate and incorporate here. The 
first report of the Commission shall be presented 
to the Governor and to the 1995 session of the 
General Assembly for their consideration. 

The Commission shall, in the performance of its 
duties: 

(a) Gather and study such data and 
information as may be necessary and 
useful for accomplishing the purposes of 
this Commission. 

(b) Work cooperatively with other boards, 
commissions, and entities and take 
maximum advantage of their resources 
and activities that can provide useful 
information and insight to the purposes of 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



227 



EXECUTIVE ORDERS 



this Commission, 
(c) Prepare an annual repyort on its findings 
and recommendations for presentation to 
the Governor and the General Assembly. 

Section 3. Meetings. 

The Commission shall meet at least once each 
quarter and may hold special meetings at any time 
at the call of the Chair. 

Section 4. Expenses. 

Commission members representing the business, 
professional and academic communities shall 
receive no per diem or expenses in connection 
with the work of the Commission. The expenses 
of Commission members representing state agen- 
cies shall be paid by their respective agencies 
pursuant to N.C.G.S. 138-5. Expenses incurred 
by the Commission in connection with meetings 
and the preparation therefor shall be paid from the 
budget of the North Carolina Department of 
Commerce. Administrative and staff support for 
the Commission shall be provided by the North 
Carolina Attorney General. 

The Commission is authorized to accept grants, 
gifts, bequests, and other offers of assistance 
necessary to carry out its tasks and functions. 
Also, each state agency cooperating in the work of 
the Commission may provide additional funds from 
its own budget to support the Commission. 

This Executive Order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 19th day of April, 1994. 

EXECUTIVE ORDER NO. 45 

GOVERNOR'S INITIATIVE TO 

STRENGTHEN NORTH CAROLINA 

HISTORICALLY BLACK 

COLLEGES AND UNIVERSITIES 

By the authority vested in me as Governor by the 
Constitution and laws of the State of North Caroli- 
na, IT IS ORDERED: 

Section L Establishment. 

There shall be established the Governor's Initia- 
tive to Strengthen North Carolina Historically 
Black Colleges and Universities, to advance the 
development of human potential, to enhance the 
capacity of Historically Black Colleges and Uni- 
versities (HBCUS), to provide quality education 



and to increase opportunities to participate in and 
benefit from federal and state financially assisted 
programs. 

Section 2. Advisory Council. 

(a) The Governor's Advisory Council on North 
Carolina Historically Black Colleges and Universi- 
ties is hereby established. For organizational 
purposes, the Council shall be placed in the Office 
of the Special Assistant to the Governor. The 
Advisory Council shall issue an annual report to 
the Governor on participation by agencies with 
HBCUS. The Council shall also provide advice to 
the Special Assistant. 

(b) The members of the Council shall be ap- 
pointed by the Governor. The Council shall 
include representatives of HBCUS, other institu- 
tions of higher education, business and financial 
institutions and private foundations. The Council 
shall be composed of 12 members. One-half of 
the members shall serve initial terms of two years 
and one-half shall serve initial terms of four years. 
Thereafter, terms shall be for four years. 

(c) TTie Office of the Sp)ecial Assistant shall 
provide staff assistance to the Advisory Council 
and assist the Governor as liaison between the 
departments and agencies of state government and 
HBCUS. 

Section 3. Procedure. 

(a) To carry out the purposes of this Order, each 
state department or agency designated by the 
Governor shall, consistent with applicable law, 
enter into appropriate contracts, grants, or cooper- 
ative agreements with HBCUS. The head of each 
department or agency subject to this Order shal 
establish an aimual goal for the amount of financia 
assistance to be awarded in contracts, grants, oi 
cooperative agreements to HBCUS. The goal shal 
be an amount equal to or above the actual amoun 
of such awards from the previous fiscal year, witl 
effort being made to increase assistance tc 
HBCUS. To facilitate the attainment of the goali 
established, departments or agencies subject to thii 
Order shall provide technical assistance an( 
information to HBCUS regarding the agency' 
programs and the preparation of applications o 
proposals for grants, contracts or coop)erativ 
agreements. 

(b) Each designated department or agency shal 
appoint a senior official, who is a fuU-timi 
employee of state government and who 
responsible for management or prograr 
administration, to report directly to the departmei 
or agency head, or his or her designee, and 



228 



9:4 



NORTH CAROLINA REGISTER 



May 16, 199 



EXECUTIVE ORDERS 



serve as liaison to the Council and the Office of 
Special Assistant. 

(c) Each designated department or agency shall 
develop and document an annual plan for the 
agency's effort to increase the ability of HBCUS to 
participate in state and federally sponsored 
programs. These plans shall describe the 
objectives for proposed agency actions to fulfill 
this Order and shall be submitted at such time and 
in such form as the Governor shall designate. In 
consultation with participating agencies, the 
Special Assistant and the Council shall review 
these plans and include their findings in the yearly 
report to the Governor. 

(d) The designated state departments or agencies 
will examine unintended or arbitrary barriers, 
determine the adequacy of the dissemination of 
information on programmatic and financial 
opportunities of interest to the HBCUS and 
identify ways of assuring equity and fairness. 

(e) In its yearly report to the Governor, the 
Council shall relate the progress achieved in 
enhancing the role and capabilities of HBCUS, 
including findings and recommendations on the 
Annual Performance Reports. TTie report also 
shall advise the Governor on how to increase the 
private sector's role in strengthening HBCUS. 
Particular emphasis shall be placed on enhancing 
institutional infrastructure and on facilitating 
planning, development and the use of new 
technology to ensure long-term viability and 
growth. The Special Assistant shall disseminate 
the annual report to members of the General 
Assembly, Council of State and Cabinet and seek 
to ensure that findings of the Council are taken 
into account in the policies and actions of every 
designated department or agency. 

(f) The Office of the Special Assistant, along 
with other state departments and agencies, shall 
work to encourage the private sector to assist 
HBCUS through increased use of such devices and 
activities as: 

(1) private sector matching funds to support 
increased endowments, and 

(2) private sector expertise to facilitate the 
development of more effective ways to 
manage finances, improve information 
management, strengthen fecilities and 
improve course offerings. 

(g) The Governor's Advisory Council through 
the Governor's HBCUS Initiative, shall provide 
advice on how HBCUS can achieve greater 
financial security. The Council shall consider how 
such institutions can enlist the resources and 
experience of the private sector to achieve such 



security. 

(h) In consultation with the State Personnel 
Director and the Governor's Director of Personnel, 
the Special Assistant shall develop a program to 
improve recruitment and participation of graduates 
and undergraduate students of HBCUS in part- 
time, temporary, intern, and permanent positions 
in state government. 

Section 4. Administration. 

(a) Members of the Governor's Advisory 
Council shall serve without compensation, but 
shall be allowed travel expenses, as available. 

(b) The Office of the Special Assistant shall 
provide such administrative services for the 
Council as may be required. 

Section 5. Effect on Prior Orders. 



Executive Order Number 24 of the Martin 
Administration is hereby rescinded. 



This Executive Order shall become effective 
immediately. 

Done in Raleigh, North Carolina, this the 20th 
day of April, 1994. 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



229 



IN ADDITION 



Ihis Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



APPLICATION FOR VARIANCE TO 29 CFR 1910.219(a)(3) 

Submitted by: Mary C. McCormac on behalf of Pilot Hosiery Mills, Inc., 224 East Main Street, Pilot 
Mountain, North Carolina 27041. Request submitted for a permanent variance to 29 CFR 1910.219(a)(3) 
as incorporated by reference in 13 NCAC 07F.0101(a) The North Carolina adopted standard, 29 CFR 
1910.219, is identical to the federal standard. 

Description of Operations: Pilot Hosiery Mills, Inc. employs 33 employees at the Pilot Mountain facility. 
The company is owned and operated by Walter B. TTiomas and David Thomas. Five knitters on two shifts 
operate 84 Scott and Williams Komet sock knitting machines. These 84 machines were built circa 1940 and 
are powered by a drive shaft which transmits energy to each machine via a belt and pulley system. Pilot 
Hosiery Mills, Inc., employs five fixers to perform servicing and maintenance on the 84 machines. 

29 CFR 1910.219(a)(3) requires a guard for the side and fece sections of nip-point belts and pulleys for the 
mechanical power transmission apparatus on each of the 84 Scott and Williams Komet knitting machines. 
Commercially manufactured guards for said machines do not exist. Pilot Hosiery Mills, Inc., did design and 
manufacture guarding to cover the drive belts and pulleys on the machines which are described in detail and 
pictured in Attachment B of the original application submitted to Division of Occupational Safety and Health 
of the North Carolina Department of Labor. TTie original application is available for public inspection at the 
offices of the Division of Occupational Safety and Health, North Carolina Department of Labor. 

Safety Aspects of Variance Request: Pilot Hosiery Mills, Inc., has taken the following actions: 

(1) retrained all knitters and fixers concerning the importance of working safely near the belts and 
pulleys; 

(2) prohibited knitters and fixers from wearing loosely fitted clothing or jewelry which might get caught 
and pull an employee into the belt and pulley system; 

(3) instructed employees concerning the correct actions to take if an employee is ever "nipped" by the 
belts and pulleys; 

(4) prohibited employees from entering the drive shaft alley while the drive shaft is in operation [Note: 
The belt and pulley system cannot operate when the drive shaft is not operating.]; 

(5) instructed all other employees not to enter any area where they might come into contact with a Scott 
and Williams Komet belt and/or pulley; 

(6) implemented installation of self-designed guards on each of the 84 Scott and Williams Komet knitting 
machines which will provide additional safeguards to employees. 

Certification to Employees: Pilot Hosiery Mills, Inc. has certified that a "Notice of Posting" was placed in 
an area visible to all employees regarding the application for a permanent variance to 29 CFR 1910.219(a)(3) 
Said Notice included a copy of the entire submission by Pilot Hosiery Mills, Inc., for the variance to 29 CFR 
1910.219(a)(3). 

Pilot Hosiery Mills, Inc., shall post this notice in a conspicuous place or places where notices to 
employees are customarily posted. Verification of such posting shall be provided to the Division of 
Occupational Safety and Health. 

Interim Order: An interim order was issued by the Commissioner of Labor to Pilot Hosiery Mills, Inc., on 
January 24, 1994, granting an interim variance which shall remain effective until a decision is rendered on 
the application for a permanent variance. 



230 9:4 NORTH CAROLINA REGISTER May 16, 1994 



IN ADDITION 



Request for Public Hearing: Any employer or employee affected by this application may submit written data, 
views or arguments regarding this application and may request a public hearing on this application by 
submitting a written petition pursuant to the rules as set out in 13 NCAC 07A.0711. All data and requests 
for public hearings must be submitted in writing to Jill F Cramer, Division of Occupational Safety and 
Health, North Carolina Department of Labor, 413 N. Salisbury Street, Raleigh, North Carolina 27603. The 
deadline for submission of a petition for a public hearing is May 31 , 1994. If no requests are received withm 
the specified time period, a final order will be issued to Pilot Hosiery Mills, Inc., pursuant to this application 
for a permanent variance to 29 CFR 1910.219(a)(3), on or before June 15, 1994. 



1-4 NORTH CAROLINA REGISTER May 16, 1994 231 



IN ADDITION 



STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OFFICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL 
NPDES PERMITS 

Public notice of intent to issue State National Pollutant Discharge Elimination System (NPDES) 
General Permits for Point Source Discharges of Stormwater associated with the following activities: 

1. NPDES General Permit No. NCG160000 for stormwater point source discharges associated 
with activities classified as Asphalt Paving Mixtures and Blocks [Standard Industrial Classification Code 
(SIC) 2951]. This General Permit is applicable to stormwater discharges from industrial activities at those 
facilities as described above. Also included in this General Permit are stormwater discharges from those 
areas at the facilities described above which are used for vehicle maintenance activities. 

2 NPDES General Permit No. NCG 170000 for stormwater point source discharges associated 
with activities classified as Textile Mill Products [Standard Industrial Classification Code (SIC) Major 
Group 22]. This General Permit is applicable to stormwater discharges from exposed material handling 
equipment or activities, raw materials, intermediate products, final products, waste materials, byproducts, 
or industrial machinery at those facilities as described above. Also included in this General Permit are 
stormwater discharges from those areas at the facilities described above which are used for vehicle mainte- 
nance activities. 

3. NPDES General Permit No. NCG 180000 for stormwater point source discharges associated 
with activities classified as Furniture and Fixtures [Standard Industrial Classification Code (SIC) 25]. This 
General Permit is applicable to stormwater discharges from industrial activities at those facilities described 
above where material handling equipment or activities, raw materials, intermediate products, final prod- 
ucts, waste materials, byproducts, or industrial machinery are exposed to stormwater. Also included in 
this General Permit are stormwater discharges from those areas at the facilities described above which are 
used for vehicle maintenance activities. 

4. NPDES General Permit No. NCG190000 for stormwater point source discharges associated 
with activities classified as Ship and Boat Building and Repairing [Standard Industrial Classification Code 
(SIC) 373] and Marinas (SIC 4493). This General Permit is applicable to stormwater discharges from 
industrial activities at those facilities described above as Marinas where vehicle maintenance (including 
vehicle rehabilitation, mechanical repairs, pamtmg, fueling, and lubrication) and equipment cleaning oper- 
ations occur and from industrial activities at those facilities described above as Ship and Boat Building and 
Repairing. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the Gen- 
eral Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North 
Carolina Environmental Management Commission proposes to issue State NPDES General Permits for the 

discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permits and Fact Sheets concerning the 
draft Permits are available by writing or calling: 

Jeanette Briggs 
Water Quality Section 

N.C. Division of Environmental Management 
PO. Box 29535 

Raleigh, North Carolina 27626-0535 
Telephone (919) 733-5083 



232 9:4 NORTH CAROLINA REGISTER May 16, 1994 



IN ADDITION 



Persons wishing to comment upon or object to the proposed determinations are invited to submit 
their comments in writing to the above address no later than June 15, 1994 . All comments received prior 
to that date will be considered in the final determmation regarding permit issuance, A public meeting may 
be held where the Director of the Division of Environmental Management finds a significant degree of 
public interest in any proposed permit issuance. 

The draft Permits, Fact Sheets and other information are on file at the Division of Environmental 
Management, 512 N. Salisbury Street, Room 925-B, Archdale Building, Raleigh, North Carolina. They 
may be inspected during normal oflSce hours. Copies of the information of file are available upon request 
and payment of the costs of reproduction. All such comments and requests regarding these matters should 
make reference to the draft Permit Numbers, NCG 160000, NCG 170000, NCG 180000, or NCG 190000. 



Date 5/2/94 David A. Goodrich 



for/A. Preston Howard, Jr., P.E., Director 
Division of Environmental Management 



^:4 NORTH CAROLINA REGISTER May 16, 1994 233 



PROPOSED RULES 



TITLE 12 - DEPARTMENT 
OF JUSTICE 

J\lotice is hereby' given in accordance with G.S. 
150B-21.2 that the N.C. Department of Justice, 
State Bureau of Investigation intends to amend 
rules cited as 12 NCAC 4E .0402 and 4G .0102. 

1 he proposed effective date of this action is 
August 1. 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on May 31 , 1994 at the Division of Crimi- 
nal Information, 407 N. Blount Street, Raleigh, 
North Carolina 27601. 

Jxeason for Proposed Action: 
12 NCAC 4E .0402 - This Rule change is being 
made to be more responsive to our User's train- 
ing needs as well as to prepare for changes in 
the Federal NCIC program. 

12 NCAC 4G ,0102 - This Rule change is being 
made to conform the penalty provisions to the 
amended changes contained in 12 NCAC 4E 
.0402. 

i^onunent Procedures: Comments may be sub- 
mitted in writing, or may be presented orally at 
the public hearing. Written comments should be 
submitted to E.K. Best, Division of Criminal 
Information, 407 N. Blount Street, Raleigh, 
North Carolina 27601, by June 15, 1994. 

CHAPTER 4 - DIVISION OF 
CRIMINAL INFORMATION 

SUBCHAPTER 4E - ORGANIZATIONAL 
RULES AND FUNCTIONS 

SECTION .0400 - DCI TERMINAL 
OPERATOR 



.0402 



(fi 



CERTIFICATION AND 
RECERTIFICATION OF 
DCI OPERATORS 



(a) Authorized — ag e noy — p e rsonn e l. — whe — are 

assign e d th e duty of operating the DCI terminal, 
shall be o e rtifi o d by DCI within — 1 20 days of 
e mploym e nt with o e rtifioation r e n e w e d at l e ast 
e v e r)' 2 4 months. 

(b) DCI Ig o uo o throo typoo of oertifioation: 



fB "Full certification" — certifies — a — person 

with the ability and knowledge to use 
those program s which are dcvclopHxi 
and administered by DCI for local law 

enforcement aad criminal — justice 

agencies. ?e — obtain — aa — initial 

full certification, authorized personnel 
must attend not le s s than 2 8 hours of 



(3)- 



m- 



instructior 



3n concerning trie proper u s e 
and — control — of information — obtained 
from a DCI terminal; 



4^ 



-4ttW 



ccrtincation — renew s a- 

ccrtification at least every 2 4 month s 
after the initial certification is issued. 
Re certification — may be — obtained — ^ 
attending the two day re certification 
class — if — initial — certification — has — net 
expired — &f — if — an — individual — has 
obtained a 30 day extension. — If the 
initial certification has expired, he/she 

must attend th« entire initial 

certification classroom instruction. 

An individual 
certification 



may retain his original 
date — if — re certification 



class is attended up to 90 days prior 
to the expiration date; and 

"In s ervice certification" certifie s 

and/or re certifie s a person through an 
in service — training — program — provided 

by his department. In order for an 

agency — te — obtain — an — "In service 
Certification — Program " , — the — agency 
mu s t submit a written proposal to DCI 
outlining the certification program to 
be — provided — te — its — personnel. — DGI 
personnel — and — the — Advisory — Policy 
Board will — review the proposal and 
provide a written response of approval 

©f — denial. If — the — program — is 

approved, a copy of the le s son plan s , 
a li s t of personn e l — certified — through 
s uch program, transaction code s to b e 
authorized — by — terminal, — and — other 
informati &fl — relating — te — the — program 

shail — be — provided — te — Bd^ The 

instructor fef the agency must 

compl e te tfee taw enforcement 

instructor certification course. 



)rdcr for 



{e) — Enrollment will be necessary m oi 
DGI — instructors to admit a student in a DCI 

certification ef re certification class. 

Enrollment procedure s shall be as follows: 

^4^ A search of the certification class filco 

shaH — be — performed — te — determin e 
whether a clas s has any vacancies; 



234 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



. 



PROPOSED RULES 



^ If there is a vacancy, — an enrollment 

form signed by the departmcni head. 



e 



r when applicable, by- 



-a 



communicationa 8Uf>ervi 9 or, which 

listfl the individuals to be enrolled in 



tbe- 



;4ass — shaH — be 



s pecific — training — e+ 
s ubmitted to DC I no — later than five 
working — day s — before — the — class — is 

scheduled — te — begin. if — fef — s ome 

reason aH personnel cannot be 

accommodated, — D€4 — wiH — promptly 
contact — the — department — head — or 
s upervisor with an explanation of why 
all personnel cannot be accommodated 
in the class requested; 

{¥) A s earch of the certification class files 

s hall — be — performe d — ^i- — the — agency 
enrolling per s onnel to verify that the 

reque s ted per s onnel have been 

enrolled in the class reque s ted; and 

f4) Late enrollment may be made by the 

department head or when applicable. 
by — a communications — s upwrvi s or. — by 
cither — sending a s witch — message to 
terminal PIH or by faxing a copy of a 
properly — completed — late — enrollment 
form to DCI via phone number (919) 
733 8 378. — Late enrollment by switch 
mes s age mu s t include the name and 
social security number of personnel to 
be enrolled in the class. — Employees 
s hould not be s ent to cla ss until a 



confirmation — ef — receipt — and — space 
availability — has — been — received — from 

DCI. The — employee — must bring — a 

completed enrollment form signed by 
the agency head or when applicable, 
by the communications 9 up)ervi s or, to 
clas s if the enrollment is by s witch 
message. 
fd) — New personnel hired or personnel newly 
issigncd the duties of a terminal operator s hall 



an indoctrination and hands on training 



3n the basic functions and terminology of the 



system — by — their — own — agency — prior — te 



ittending certification class. — Such personnel may 



a terminal acces s ing DCI while obtaining 



ndoctrination — if — s«eh — personnel — are — directly 



upcr\'iscd by a certified operator. 
{e) Following — the — in s truction — en — ft»H 



ertification. 



in service certification ef 



c certification classe s . 



-test wtW be 



dministcred and a minimum grade of 8 percent 



be attained in order for a person to become 



pcmtor certified - 



tf) — DCI will notify' the employee's supervi s or 
of the grade attained. If 8 percent or more ha s 
been — attained, — the — employee — is — certified — upon 
receipt of notice whether verbal or written. 

tg) — Any agency which allows an ind i vidual to 
op>cratc a terminal or interface terminal acce s sing 
DCI who is not certified or who i s not within th e 
120 day training period and directly supervised 
by a certified op)crator will be in violation of this 
Rule and s ubject to the provisions of Subchapter 
4 G Rule .0102(b) of this Chapter. 

fh) Any agency f>crsonncl — u s ing a certified 

operator' s identifier other than their own to gain 
acce ss to DCI and violating a DCI procedure 
will be in violation of this Rule and subject to 
the provision s of Subchapter 4 G Rule .0102(c) of 
this Chapter. 

(a) Authorized agency personnel, who are 
assigned the duty of operating a DCI terminal or 
who operate a terminal accessing DCI via an 
a pproved interface shall be certified within 120 
days from employment or assignment to terminal 
operation duties. Certification is to be awarded 
based on achieving a test score of 80 percent or 
greater. Recertification is required every 24 
months and can be obtained any time 90 days 
prior to expiration. Certification and 
recertification is available by the following 
method: 

"Specialized Certification" certifies and 
recertifies an operator through a specialized 
training program provided by employing agency 
or a host interface agency that provides computer 
access to DCI. A pproval for a "Specialized 
Certification Program" will be based upon 
special training needs that are not met by the 
"General Certification Program" or the cost 
effectiveness for both the user agency and DCI. 
Agencies wanting to adopt a specialized program 
must submit a written proposal to DCI outlining 
the program to be provided to its personnel. 
The proposal must be submitted m standard 
format as required by DCI which includes: 
types of participants. course content, 

implementation methods, instructional methods, 
and program coordinator duties, DCI personnel 
will review the proposal and provide a written 
res ponse of a pproval or denial. If the pro posal 
IS denied, the agency may request an appeal 
hearing before the Advisory Policy Board. If the 
proposal js a pproved, the program coordinator 
must submit training documentation to DCI for 
approval to meet DCI/NCIC training standards 
and policies. The instructor for each a pproved 
"Specialized Certification Program" must have 



NORTH CAROLINA REGISTER 



May 16, 1994 



235 



PROPOSED RULES 



successfully completed the North Carolina Law 
Enforcement Instructor Certification Course and 
must maintain an active DCI "General 
Certification" which includes all modules being 
offered in the "Specialized Certification 
Program". Recertification can be obtained by 
challenging and passing the approved 
"Specialized Certification Test" or by attending 
and passing classes as specified in the agency's 
approved "Specialized Certification Program". 

(b) Enrollment will be necessary for student 
attendance to any training or testing class for 
DCI operators. Enrollment will be requested 
and approved by the agency head or where 
applicable a communications supervisor of an 
authorized agency as defined in 12 NCAC 4E 
.0201 and .0202 and personnel must meet the 
management control requirements outlined in 12 
NCAC 4E .0200. DCI will maintain enrollment 
for all "General Certification" classes and the 
administering agency will mamtain enrollment 
for each "Special Certification" program. 
Enrollment shall be done on a form or such 
automated method provided by DCI. The 
enrollment procedure for "Special Certification" 
will be defined within the approved plan and be 
responsive to the students needs which it serves. 
The enrollment procedure for General 
Certification or Recertification are: 

(I) A search of the training or testing 
class files shall be performed by the 
enrolling agency to determine whether 
a class has any vacancies. 
(2") If there is a vacancy, the enrollment 
will be entered into the class 
enrollment file in a manner prescribed 
by DCI. 

(3) The enrolling agency must insure the 
student has been accepted in class 
prior to sending them to class. 

(4) When classes become full, DCI is to 
assist agencies enroll their personnel 
by establishing waiting lists, identify- 
ing alternative classes or if the de- 
mand warrants, establish an additional 
class- 
es) All enrollments must be accepted by 

DCI at least two work days prior to 
the training or test class. 
(6) A copy of each enrollment must be 
signed by the Agency Head, or appli- 
cable communication's supervisor, 
and maintained on file for two years 
by the enrolling agency. This docu- 
ment is subject to inspection by repre- 



sentatives of the Division as reason- 
able times. 

(c) New personnel hired or personnel newly 
assigned to duties of a terminal operator shall 
receive an indoctrination and hands-on training 
on the basic functions and terminology of the 
DCI system by their own agency prior to attend- 
ing certification class. Such personnel may oper- 
ate a terminal accessing DCI while obtaining 
indoctrination if such personnel are directly 
supervised by a certified operator and are within 
the 120 day training period. 

(d) Any individual who's certification has 



expired may be allowed to retest as a recertifica- 
tion student u^ to 90 days after their expiration. 
The individual will not be able to operate the 
terminal during the time between expiration and 
passing the recertification test(s). Any individual 
who's certification has expired more than 90 
days will be required to attend and successfully 
complete training classes. 

(e) Any agency which allows an individual to 
operate a terminal accessing DCI who is not 
certified or who is not within the 120 day train- 
ing period and directly supervised by a certified 
operator will be in violation of this Rule and 
subject to the provisions of Subchapter 4G Rule 
.01020)) of this Chapter. 

£f) Any agency personnel using a certified 
operator's identifier other than their own to gain 
access to DCI and violating a DCI procedure or 
for the purpose of concealing their identity will 
be in violation of this Rule and subject to the 
provisions of Subchapter 4G Rule .0102(c) of 
this Chapter. 

£g} When a DCI certified operator leaves the 
employment of their agency, the Agency Head 
will notify DCI within 24 hours. This notifica- 
tion is to allow DCI to immediately remove that 
operator's identification in the network until such 
time as they are employed by another authorized 
agency. 

Statutory Authority G.S. 114-10; 114-10.1. 

SUBCHAPTER 4G - PENALTIES 
AND ADMINISTRATIVE HEARINGS 

SECTION .0100 - DEFEVmONS 
AND PENALTY PROVISIONS 

.0102 PENALTY PROVISIONS 

(a) Insecure location of DCI terminal pursuant 
to 12 NCAC 4F .0101 shall result in the follow- 
ing penalties: 



236 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



(1) First Offense - Agency Penalty 
(Warning) with conditions that the 
terminal be secured within 48 hours; 

(2) Second Offense - Agency Penalty 
(Reprimand) with conditions that the 
SB! Assistant Director for DCI and 
the agency head must establish an 
agreed time period within which the 
terminal can be secured; and 

(3) Third Offense - Agency Penalty 
(Suspension) resulting in suspended 
access to computerized criminal 
history and drivers history data until 
the terminal is secured. 

(b) Uncertified operator pursuant to 12 NCAC 
4E .0402 shall result in the following penalties: 

(1) First Offense - Agency Penalty 
(Reprimand); 

(2) Second Offense - Agency Penalty 
(Probation) and limited operational 
time; 

(3) Third Offense - Agency Penalty 
(Suspend Services) with full service 
removed for six months from the date 
of the hearing and probation extended 
for one year from date of 
reinstatement; and 

(4) Fourth Offense - Agency Penalty 
(Suspend Services) resulting in the 
removal of the terminal. 

(c) Unauthorized use of a DCI certified 
operator identifier pursuant to 12 NCAC 4E 

0402 shall result in the following penalty: 
First Offense - Individual Penalty (Revocation) 
and/or seek criminal prosecution under any 
applicable state or federal law for unauthorized 
access to a computer system. 

(d) Transmission of non-criminal justice 
■elated information over a DCI terminal pursuant 
o 12 NCAC 4F .0102 shall result in the 
bllowing penalties: 

(1) First Offense - Individual Penalty 
(Warning); 

(2) Second Offense - Individual Penalty 
(Probation) and Agency Penalty 
(Warning) if on same operator; 

(3) Third Offense - Individual Penalty 
(Suspended Certification) and Agency 
Penalty (Reprimand) if on the same 
operator as a second offense; and 

(4) Fourth Offense - Individual Penalty 
(Revocation) and Agency Penalty 
(Probation) if on the same operator as 
a third offense. 



(e) Failure by the original servicing agency 
(agency with direct access) to comply with the 
penalties that are placed upon the non-terminal 
(indirect access) agency pursuant to 12 NCAC 
4E .0203 shall result in the following penalty: 
First and Subsequent Offenses - The servicing 
agency (agency providing direct access) will 
receive the same penalty that should have been 
imposed upon the non-terminal (indirect access) 
agency. 

(f) Dissemination of driver's history by a 
certified operator to an unauthorized requestor 
pursuant to 12 NCAC 4F .0701 shall result in 
the following penalties: 

(1) First Offense - Individual Penalty 
(Probation); 

(2) Second Offense - Individual Penalty 
(Suspension) and Agency Penalty 
(Warning); and 

(3) Third Offense - Individual Penalty 
(Revocation) 

(g) Unauthorized use of driver's history by 
authorized personnel other than a certified 
operator pursuant to 12 NCAC 4F .0701 shall 
result in the following penalties: 

(1) First Offense - Agency Penalty 
(Warning) with the agency submitting 
a written response to the SBI/DCI of a 
plan and date by which departmental 
training is complete to prevent further 
violations of this Rule; 

(2) Second Offense - Agency Penalty 
(Reprimand); and 

(3) Third Offense - Agency Penalty 
(Suspension) of driver's history for six 
months. 

(h) Failure (if entire agency is more than 10 
percent deficient) to maintain a log of 
dissemination on "positive" driver's histories 
obtained through DCI for a period of one year 
from the date the record was received pursuant 
to 12 NCAC 4F .0701 shall result in the 
following penalties: 

(1) First Offense - Individual Penalty 
(Warning) to each operator that 
contributed with a re-audit after 90 
days; 

(2) Second Offense - Individual Penalty 
(Probation) and Agency Penalty 
(Warning); 

(3) Third Offense - Individual Penalty 
(Suspension of Certification) and 
Agency Penalty (Reprimand): and 



:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



237 



PROPOSED RULES 



(4) Fourth Offense - Individual Penalty 

(Revocation) and Agency Penalty 

(Probation). 

(i) Failure to utilize the proper CCH message 

key in accessing III whether or not resulting in 

an unauthorized dissemination pursuant to 12 

NCAC 4F .0401, .0402, .0404, .0405, and 

.0407 shall result in the following penalties: 

(1) First Offense - Individual Penalty 
(Warning) with condition of agency 
re-audit after 90 days; 

(2) Second Offense - Individual Penalty 
(Probation) with the agency submitting 
a written response to the SBI/DCI of a 
plan and date by which training is 
complete to prevent fiirther violations 
of this Rule; 

(3) Third Offense - Individual Penalty 
(Suspension of Certification) and 
Agency Penalty (Reprimand); and 

(4) Fourth Offense - Individual Penalty 
(Revocation). 

(j) Improper use of CCH data in denial or 
revocation of a license or p>ermit pursuant to 12 
NCAC 4F .0406 shall result in the following 
penalties: 

(1) First Offense - Agency Penalty 
(Reprimand); 

(2) Second Offense - Agency Penalty 
(Probation); 

(3) Third Offense - Agency Penalty 
(Suspension of Services) with access 
suspended to computerized crimmal 
history non-criminal justice purposes 
for a period of six months; and 

(4) Fourth Offense - Agency Penalty 
(Suspension of Services) with access 
suspended to computerized criminal 
history non-criminal justice purposes 
for one year. After one year of 
suspension the agency must seek 
reinstatement by appearing before the 
Advisory Policy Board. 

(k) Dissemination of CCH by a certified 
operator for an unauthorized purpose or to an 
unauthorized requestor pursuant to 12 NCAC 4E 
.0203; 4F .0401, .0404, .0405, and .0407 shall 
result in the following p)enalties: 

(1) First Offense - Individual Penalty 
(Probation); 

(2) Second Offense - Individual Penalty 
(Suspension of Certification) and 
Agency Penalty (Warning); and 

(3) Third Offense - Individual Penalty 
(Revocation). 



(1) Unauthorized use or dissemination of CCH 
by authorized persormel other than the certified 
operator pursuant to 12 NCAC 4F .0401, .0404, 
.0405, and .0407 shall result in the following 
penalties: 

(1) First Offense - Agency Penalty 
(Reprimand) with the agency 
submitting a written response to the 
SBI/DCI of a plan and date by which 
training is complete to prevent further 
violations of this Rule with a re-audit 
to be conducted 90 days after training 
is complete; 

(2) Second Offense - Agency Penalty 
(Suspension) of CCH services for a 
period of 90 days; and 

(3) Third Offense - Agency Penalty 
(Suspension) of CCH services for a 
period of six months. 

(m) Failure (if the entire agency is more than 
10 percent deficient) to log all of the required 
fields on the CCH dissemination log pursuant to 
12 NCAC 4F .0401 shall result in the following 
penalties: 

(1) First Offense - Individual Penalty 
(Warning) with a re-audit after 90 
days; 

(2) Second Offense - Individual Penalty 
(Probation) and Agency Penalty 
(Warning); 

(3) Third Offense - Individual Penalty 
(Suspension of Certification) and 
Agency Penalty (Reprimand); and 

(4) Fourth Offense - Agency Penalty 
(Probation). 

(n) Failure (if the entire agency is more than 
10 percent deficient) to maintain a log of 
dissemination on "positive" criminal history 
record information obtained through DCI for a 
period of one year from the date the record was 
received pursuant to 12 NCAC 4F .0401 shall 
result in the following penalties: 

(1) First Offense - Individual Penalty 
(Warning) to each operator that 
contributed and an Agency Penalty 
(Warning) with re-audit after 90 days; 

(2) Second Offense - Individual Penalty 
(Probation) and an Agency Penalty 
(Reprimand) with the agency head 
submitting a letter to DCI on a 
monthly basis (for 12 consecutive 
months) verifying that a self audit has 
been conducted. Failure to submit 
this verification letter will be 



238 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



considered a breach of the users 

agreement; and 
(3) Third Offense - Individual Penalty 

(Suspension of Certification) and an 

Agency Penalty (Suspension of 

Services) suspending CCH for six 

months. 
(o) Failure of the agency maintaining 

manaeement control over the certified operator 
to notify SBI/DCI of the employee's resignation 
or termination of employment pursuant to 12 
NCAC 4E .0402 (g): 

First Offense 



m 



12} 



£3} 



14} 



Agency Penalty 
(Warning) with condition of agency 
reaudit after 90 days; 
Second Offense z Agency Penalty 
(Reprimand) with condition of agency 
re-audit after 90 days; 
Third Offense ; Agency Penalty 
(Probation); and 
Fourth Offense 



Agency Penalty 



(Suspended Service). 



Statutory Authority 114-10; 114-10.1. 

TITLE 13 - DEPARTMENT 
OF LABOR 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Labor, Mine 
and Quarry Division intends to amend rules cited 
as 13 NCAC 6 .0305. .0402. .0501. .0507. 
.0510. .0515 - .0516. .0519. .0521 - .0522, 
.0525 - .0526; repeal .0505. .0511 - .0512 and 
0520. 

Ihe proposed effective date of this action is 
August 1, 1994. 

I he public hearing will be conducted at 9:30 
i.m. on June 16, 1994 at the Agriculture Bulki- 
ng. Room 359, 1 West Edenton Street. Raleigh, 
V.C 27607. 

ixeason for Proposed Action: To update the 
tate Mine and Quarry regulations so that they 
ire consistent with the Federal mining regula- 

ions. 

comment Procedures: In order to allow the 
epartment sufficient time to review and evaluate 
our written comments, please submit your com- 



ments to Mr Scott Templeton, APA Coordinator, 
Department of Labor, 4 West Edenton Street, 
Raleigh. N.C. 27601 . fax (919) 733-6197, tele- 
phone (919) 733-0368 by June 6, 1994. At the 
latest, we must receive your written comments by 
June 15, 1994, except you may present written 
comments at the hearing. Oral comments may 
also be presented at the hearing; however, time 
limits may be imposed by the chair. 

CHAPTER 6 - MINE AND QUARRY 

SECTION .0300 - PROCEDURES 

.0305 ACCIDENT AND ILLNESS 
RECORDS 

(a) Reporting Required. Following the occur- 
rence of any work-related accident (including 
those listed in Rule .0304(a) of this Section), 
work-related illness, or work-related injury 
(other than a minor first-aid case), the operator 
shall complete a Mine Injury or Illness Report, 
Form MAQD-9 (or Bureau — of Mines — Form 
6 1555 or MESA Form 3000 Mine Safety and 
Health Administration (MSHA) Form 7000-1 ). 
The report form shall include the followmg 
information: the name and address of the opera- 
tor, the location of the mine, a description of the 
circumstances of the accident, injury or illness; 
location of the accident within the mme; the 
name and job title of the ill or injured person; 
and the total number of lost workdays. 

(b) Report to Director. The operator shall 
mail or fex one copy of the form to the director 
within 10 calendar days of the occurrence of the 
accident, illness, or injury. If the form ]s faxed, 
a copy of the form must also be mailed to the 
director within 24 hours. 

(c) Maintenance of Records. The operator 
shall maintain one copy of each form at the mine 
or nearest mme oflice for at least one year and 
shall upon request make the record available for 
examination by an a inspector representative of 
the Division. 

Statutory Authority G.S. 74-24.13; 95-4(2). 

SECTION .0400 - GENERAL 
MINE STANDARDS 

.0402 FEDERAL MANDATORY 
STANDARDS 

(a) The commissioner has adopted and will 
enforce the mandatory provisions of the Metal 
and Nonmetal Mine Health and Safety Standards, 



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NORTH CAROLINA REGISTER 



May 16, 1994 



239 



PROPOSED RULES 



October July . 197 4 1992 edition, including 
subsequent amendments and editions August, 
1976 Rcvi s ion[ 30 C.FR. Chapter 1, Parts &&^ 
56t and 57^ (1976)] as amended by 4 2 Federal 

Register 7002 7011, 29 4 18 29 4 25 aad 

5703 8 570 11 . which have been promulgated by 

ih^ Mining Enforcement aftd Safety 

Administration of the United State s Department 
of — the Interior — afld — 43 — Federal — Register 
5 4 065 5 4 067. 44 Federal Regi s ter 31916 31920; 
4 851 4 4 85 4 5. and 5370 4 . which have been 
promulgated — by — th* — Mine — Safety — and — Health 
Admini s tration of the United States Department 
of Labor. 

(h) Copies of the standards may be obtained 
from the Metal and Nonmetnl Mine Safety and 
Health — Division. — Mine — Safety — aad — Health 
Administration. — United — State s — Department — ef 
Labor. — Ball s ton — ?©wef — ^ — 49i4 — Wilson 
Boulevard. — Arlington. — Virginia — 22203 U.S. 
Government Printing Office. Superintendent of 
Documents. Post Office Box 371954. Pittsburgh. 
Pennsylvania 15250-7954 . Copies of the 

standards are also available for inspection and 
purchase at the offices of the mine Mine and 
quarry Quarry Division. 



Statutory Authority G. S. 74-24. 4(a). 

SECTION .0500 - SURFACE MINE: 
PIT AND QUARRY STA>fDARDS 

.0501 APPLICABILITY 

In addition to complying with the requirement 
requirements of Section .0400 of this Chapter, 
all mines, except for the underground portions of 
underground mines, shall comply with the rules 
of this Section. 



fastened. They shall be inspected at least 
semi-monthly and replaced when needed. 

(c) Direction of Cab Travel. The cab of 
machines, when traveling, shall face in the 
direction of travel, if practicable; otherwise a 
competent qualified person shall direct the 
movement from the ground. 

(d) Oilers. Oilers shall keep the machine 
operator informed as to their whereabouts. 

(e) Suspension Cables. Sheaves and Pins. All 
boom suspension cables, along with their sheaves 
and pins, shall comply with the machine 
manufacturer's specifications. They shall be 
inspected at least monthly and replaced when 
needed. 

Statutory Authority G.S. 74-24. 4(a). 

.0510 RAILWAYS 

(a) — Designated Limits. — Railroad cars shall be 
left — standing — within — ihe — limits — designated — by 
clearance s ign s or posts. 

fb) Handbrakes. Railroad — eaf — handbrakes 

shall be tested before an attempt is — mad e to 



move — the — eafr- 



-4f — defective — brakes — are 



discovered, the ear shall be marked appropriately 
for repair s and moved only with a locomotive or 
when — attached — te — another — ear — having — good 
brake s . 

fe) — Pinching. Starting a railroad car on a 
grade by "pinching" shall be prohibited except 
when a mmt person is stationed at the brake 
wheel. ("Pinching" is defined as moving a 
railroad car with a pinchbar by placing the 
pinchbar between the wheel and the railroad 
track and using leverage to move it forward.) 

Statutory Authority G. S 74-24. 4(a). 



Statutory Authority G. S. 74-24. 4(a). 

.0505 MAINTENANCE 

AH — machinery, — s tructure s — asd — places — m — «se 
s hall — at — aH — times — be — maintained — in a — safe 
condition. 

Statutory Authority G. S. 74-24. 4(a). 

.0507 CRANES: DRAGLINES: 

SHOVELS AND DERRICKS 

(a) Air Pressure Gauge. Machines equipped 
with air brakes or air clutches shall have an air 
pressure gauge in view of the machine operator 

(b) Derrick Guy Ropes. Derrick guy ropes 
that support masts shall be securely anchored and 



.0511 MOTOR VEinCLES 

ta) — Dumping Signal. — Trucks shall not dump 
iftte — attended crusher chutes, — hoppers or bina 
without a signal from the attending operator. 



fb^ — Safety Equipment. — Where practicable, oil 
motor — vehicles — s hall — be — equipped — with — a 
wind s hield, windshield wiper s , horn, air pressure 
gauge (where air brakes arc used) and rear view 
mirrors. 



Statutory Authority G. S. 74-24. 4(a). 
.0512 CONVEYORS 



AH- 



fcct abov e 



conveyors extending over seven 
a v t mlking surface shall have a V t 'olkway adjacent 
te — the — conveyor — if — practicable. WTiere — ae 



240 



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PROPOSED RULES 



wollcwaya arc practicable, oonveyors that will so 
permit by s tructural strength l ahall have a hand 
line on both oidcs at least 30 inches above the 
belt, and the controls shall be locked in the "off" 
position — before — anyone — is — permitted — em — th« 
conveyor. 

Statutory Authority G. S. 74-24. 4(a). 

,0515 FIRE PREVENTION 

(a) Open Fires. The use of open fires for 
comfort heating for miners shall be prohibited. 

(b) Storage and Use of Oxygen, Etc. Oxygen, 
oxyacetylene and oxygydrogcn oxyhydrogen 
and/or electric welding, burning and cutting 
equipment shall be placed under the charge of a 
competent qualified person or persons who shall 
be responsible for its safe storage and use. 

(c) Acetylene Storage and Use. Gas 
Acetylene cylinders shall be secured vertically 
and shall be handled with extreme caution. Care 
shall be token that all connections and equipment 
be free — from — eti — &f — grease — and — that — oxygen 
cylinders arc eapf)cd when not in use. Acetylene 
shall not be used at pressures higher than 15 
pounds (6.8 kilograms) per square inch (6 .452 
square centimeters) . 

(e3 — Storage of Flammable Liquids — Suitable 
ind safe facilities shall be provided for storage 
jf flammable liquid s . — Flammable liquid s s hall 
lot be stored within 300 feet of any explosives 
nagazine. 

Statutory Authority G. S. 74-24. 4(a). 

0516 ELECTRICAL EQUIPMENT 

(a) National Electrical Code. All electncal 
ipparatus, equipment and wiring shall be 
astalled and maintained in accordance with the 
"Jational Electrical Code (+^75 1993 Edition, 
ncluding subsequent amendments and editions ) 
asofar as the code is applicable to the operation 
f surface mines, pits and quarries Copies of 
le code are available for inspection and 
urchase in the oflice of the division and may be 



btained from the National Fire Prevention 
'rotection Association, 60 I Battery — March 



tfeet Battervmarch Park, Post Office Box 9101 , 

©stea Quincy , Mass. 02110 02269-9101 . 

(b) Personnel Authorization and Instruction. 

>nly qualified persons shall install, operate, 

;pair, work on or with electric wires, lightmg 

Dnductors or electrical apparatus, machinery or 

^uipment. 



Statutory Authority G. S. 74-24. 4(a). 

„0519 SAFETY SHOWERS AND EYE 
WASH FOUNTAINS 

fa) Dangerous — Chemicals. AH — dangerous 

chemical s s hall be stored, hand l ed and u s ed m a 



safe 



hazards — te 



manner — se — as — te — prevent 
employee s " health and safety. 

{h) — Safety Showers and Eye Wash Fountain s . 
Safety showers and eye wash fountains shall be 
provided, operable, and easily accessible to near 
all areas where a hazard exists from hazardous 
chemical splashes and spills. ("Hazardous 
chemical" is defined as a chemical for which 
there is statistically significant evidence based on 
at least one study conducted in accordance with 
established scientific principles that acute or 
chronic health effects may occur in exposed 
employees.) 

Statutory Authority G. 5. 74-24. 4(a). 

.0520 JET CHANNELING OR PIERCING 

t*) — Hard surfacing. — A hard surface wearing 
material shall be maintained on the sides of the 
burner. 

<¥) — Lighting. — No person shall be allowed in 
from of a burner while it is being lighted 

(e^ — Lighting Over Channel. — Burners s hall not 
be lighted in or over channel s . 

t4) — Manufacturer's Recommendations. — All jet 
channeling — &f — piercing — apparatus — sheH — be 
maintained and operated in accordance with the 
manufacturer's r e commendations. 

fe) — Oxygen Storage Tanks. Oxygen stomgc 

tanks — shall — net — be — placed — under — high — voltage 
power lines or guy cables. 

i4) Position — of Burner. The — burner — s hall 

always be kept in a downward p>osition in order 
to prevent possible flow of fuel oil into air and 
oxygen lines. 

tg3 — Refueling. Fuel oil tanks s hall not be 

refue l ed whil e the burner is in operation. 

fh) — Shut down. — After the burner ha s been s hut 
down, th e air or water shall be left on so as to 
adequately cool the burner. 

ff) Storage — Area. The — area — s urrounding 

oxygen storage s hall b e kept clean and free of 
gasoline. — eH-, — paints, — coal, — refuse — and — oth e r 
combustibl e mat e rial s . 



Statutory Authority G. S. 74-24. 4(a). 

.052] EXPLOSIVES: GENERAL 
RULES 



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241 



PROPOSED RULES 



(a) All Clear Signal. An "all clear" signal 
shall be sounded before any person is allowed to 
return to the danger zone after a blast. 

(bj — Approved Detonators. — Only detonator s of 
an approved type shall bo used in firing a blast. 

fe)(b) Destroying Empty Containers. No 
person shall be permitted to remain within 100 
feet (30.48 meters) of a burning pile of empty 
explosives containers. 

{4^ Electrical — Storms. All u s e of e lectric 

blasting caps and all other explosives and any 
handling — thereof — shaH — be — stopped — upon — the 
approach — ef — afl — electrical — storm, — asd — aH 
personnel in the danger area shall immediately 
s eek a place of safety. 

fe) Handling — Misfires. Misfires — shall — be 

handled — ©nly — ^' — qualified — and — competent 
persons. 

ff) — Misfires. In the event of a misfire all 

persons — set — engaged — m — the — removal — ef — the 
explosives shall be kept out of the danger zone. 

f^(c) Removing Containers, Empty 

explosives containers shall not be pjermitted to be 
taken from the premises 

fh^(d) Work on Blast Area. Only persons 
necessary to the shotloading operation shall be 
permitted to work in front of the face of the blast 
area when a primary blast is being loaded. 



Statutory Authority G. S. 74-24. 4(a). 

.0525 PRIMARY BLASTING 

(a) Detonators in Blast Area— Detonating Fuse. 
When loading a blast primed with detonating 
fuse, detonators shall not be attached to the 
detonating fuse until the danger zone has been 
cleared. 

{bj — Lodged Cartridge — Dislodging. — j\ll lodged 
cartridges shall be di s lodged with a spear shaped 
wooden p>ole. 

{e)(b) Loading and Other Operations. Loading 
shall not begin until the shot has been completely 
drilled. On a shot being loaded, a drill shall not 
be used for any purpose closer to a loaded hole 
than a distance of three times the spacing of the 
drill pattern used. 

{4rf Loading of Explosives — Ibrsons in Bloat 

Area. Only authorized personnel shall be ol 

lowed in or near the blast area. 



(e) — Loading — Measuring Depth of Hole. — Holes 
shall be checked prior to loading to determine 
depth and condition. — After explo s ives have been 
loaded all measuring shall be done with a cloth 
tape and lead plumb bob, wooden tamping pole 
or wooden dolly free of exposed metal parts. 

Statutory Authority G.S 74-24. 13(c); 95-4(2). 



Statutory Authority G. S. 74-24. 4(a). 

.0522 TRANSPORTATION OF 
EXPLOSIVES ON SITE 

(a) Congested Areas. Vehicles transporting 
explosives or blasting agents shall not be driven 
through congested areas whenever it is 
practicable to avoid them. When it is necessary 
to stop a vehicle containing explosives or 
blasting agents in a congested area, the vehicle 
shall not be left unattended. 

(b) Handling Explosives. Explosives or 
blasting agents shall not be thrown, dropped or 
otherwise roughly handled. 

(c) Operators" Operators' Qualifications. 
Explosives vehicles shall be operated only by 
sober, prudent, competent and qualified persons. 

fd) Prohibited — Vehicles. N« — explo s ive s — ef 

blasting agents shall be transported in any form 
of pol e trailer, nor shall any trailer be attached 
to a vehicle transporting explosives or blasting 
agents. — Neither shall any explosives or blasting 
agents be tronsp i orted in a front end loader or 
bulldozer or any other vehicle not designed for 
cargo tran s port. 



.0526 SECONDARY BREAKAGE 

(a) Dropballing. The dropball operator shall 
be protected from flying rock by screen cloth or 
plexiglass or both. The operator shall not drop 
the ball on a rock which has a visible drill hole 
until it has been determined that the hole does 
not contain explosives. Dropballs shall be oper- 
ated at a safe distance from unprotected employ- 
ees. 

(b) Loading Explosives While Drilling For 
Secondary Blasts Only authonzed persons shall 
be allowed in the area where loading is being 
performed. No secondary blast shall be fired 
when preparing for another blast or when other 
loaded holes are located in the danger zone. 

(c) Work on Muck Pile While Secondary 
Drilling, Blasting or Mud Capping. No tools or 
equipment shall be permitted on a muck pile 
directly above or below a blaster while he a 
person is loading explosives for secondary blast- 
ing. 

Statutory Authority G. S. 74-24. 4(a). 



242 



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May 16, 1994 



PROPOSED RULES 



TITLE 14A - DEPARTMENT OF CRIME 
CONTROL AND PUBLIC SAFETY 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Crime Control 
and Public Safety, Division of State Highway 
Patrol intends to amend rules cited as J4A 
NCAC 9H 0201, adopt 9H .0304 - 0307 and 
repeal 9A .0001; 9H .0101. .0103 - .0105. 
.0301 - .0303, .0401 - .0402, .0501 - .0504. 
.0601 - .0605, .0701, .0703 - .0704, .0801 - 
.0805. .0901 - .0905 and .1001 - .1003. 

Ihe proposed effective date of this action is 
August 1, 1994. 

Ihe public hearings will be conducted at 10:00 
a.m. on June 8, 1994 at the Library, 2nd Floor. 
Archdale Building, 512 N. Salisbury Street, 
Raleigh, NC 27611. 

Jxeason for Proposed Action: Updating rules to 
conform to current procedures and repealing 
rules that do not meet the definition of a rule. 

(^om/nent Procedures: Any interested person 
may present comments relevant to the action 
proposed at the public hearing either in writing 
or oral form. W-itten statements not presented 
at the public hearing may be directed prior to 
the hearing to Winda D. Goodson, Administra- 
tive Procedures Coordinator, First Floor, Arch- 
dale Building, 512 N. Salisbury Street, P. O. Box 
27687. Raleigh, NC 27611-7687. up to June 15. 
1994. 

CHAPTER 9 - STATE fflGHWAY PATROL 



SUBCHAPTER 9A - DEFINITIONS 

0001 DEFINITIONS TO APPLY 
TO THIS CHAPTER 

Th e following — dofinitiona — sfeaH — apply to — the 
' Vordfl and phras e s found in this Chapter. — M e m 



J e m shall bo gov e rn e d by th e se definitions vvh e r 



> vor thoy appear in any Highway Patrol rule, 
^gulation, order, policy, or directiv e , or in th e 
)atrol manual: 



f4^ Captain. — A- 



jn e d officer 



Mftr — A oommiBDion e d ottic e r in th e 
patrol who ranks b e low a major and 
abov e a li e ut e nant; 



^i) Chain of Command. — Official route of 

communication — from — the — s upervisor 
lowest — ifl — Fftfik — through — intermediate 
s upKjrvisors — te — the — highest — appropriate 
3up>cr i 'i3or. — including the — Patrol — Com 
mander if appropriate; or channel s ; 

f^) Channels. Official route of communi 

cation — from — the — s upervi s or — lowest — m 
rank through intermediate supervisors to 
the — highe s t — appropriate supervisor- 
including — the — Patrol — Commander — if 
appropriate; chain of command; 

(4) Civilian Employees. — Person s employed 

by the State Highway Patrol who are 
not s worn law enforcement officer s and 
who do not have police powers; 

{&j Colonel. — A commissioned officer in the 

patrol who ranks above all other mem 
bcrs of the patrol; 

^€) Commanding Officer. — A commissioned 

officer in charge of the Highv»ay Patro l 
or any organizational subdivi s ion of the 
patrol, or any commissioned officer in 
charge of any special detail; 

f?) Commissioned Officer. A — uniformed 

member who holds the rank of licutcn 
ant, captain, major, lieutenant colonel, 
or colonel; 

{^ Compulsory Leave Without Pay. Ae- 

tiofl — token — m — temporarily — removing — a 
member from duty as a result of his 
violation of patrol policy, rules, rcgula 
tion s or directives, not to exceed three 

QQyS, 

f9^ Department. — The Department of Crime 

Control and Public Safety; 

fW) Detail. — Members of the patrol grouped 

together for the accomplishment of a 
s pecified official mission; 

fH-^ Directive. A numbered written order 

i s sued by the Patrol Commander which 
prescribes a policy governing the opera 
tion of the Highway Patrol or which 
outlines — procedures — te — bo followed — m 
performing a function or duty; 

<45^ Director — ef — Administrative — Services. 

The commanding officer of th e — High 

w^f' Patrol administrative s e rvice s 

section, who holds th e rank of major; 

fl4) Director of Communications and Logis 

tie* — The Commanding Officer of the 
Highway — Patrol — communications — aad 
logistics Section, who hold s the rank of 
major; 



h4 



NORTH CAROLINA REGISTER 



May 16, 1994 



243 



PROPOSED RULES 



fl4) Director — ef — Inspection — and — Internal 

Affairs. — The commanding officer of the 
Highv i py Patrol inspKiction and internal 
affairs section, who holds the rank of 
major; 

{iSj Director — ©f — Zone — Operations. The 

commanding — officer — of cither — of th e 
Highv i Tiy Patrol' s tvr-e geographical 



<44)- 



mh 



my- 



ii^ 



zones, who holds the rank of major; 



Dismissal. — An act which terminates the 
s ervice — ef — a — member — without — the 



member's consent; 



{¥7^ Di s trict. — A subordinate unit within a 

troop which encompasses one or mor e 
counties and is sup>crviscd by a di s trict 
fir s t s ergeant; 
District — First — Sergeant. 



The — ranking 
noncommis s ioned officer assigned to a 
Highway Patrol district; 

f4-9) Di s trict — Sup > crvisor A — district — ftfst 

s ergeant; 

■(30^ Employee. Any enforcement — member 

or a civilian employed by the patrol; 

{34^ Enforcement Member. Any employee 

©f — the — patrol — wbe — is — a — sworn — law 
enforcement officer; 

ii¥) First — Sergeant. A — noncommissioned 

officer m the patrol who ranks above a 
sergeant and below a lieutenant; 

(SJ) Gift: Something — that — is — bestowed 

voluntarily — and — without comp e nsation; 

fef — example, money, tangible — er 

intangible — personal — property. — a — loan, 
any s ervice rendered, entertainment, or 
a — promise. — expressed — or — implied, — t© 
provide any of these; 

^34) Gratuity Something that i s be s towed 

voluntarily and without — compensation; 

fef — example, money, tangible — er 

intangible — p)crsonal — property. — a — loan, 
any service rendered, entertainment, or 
a — promise, — expressed — ©f — implied, — t© 
provide any of these; 

(3^3 Illegal Order. An order issued by a 

s uperior officer which is not consistent 

with applicable laws; 

Length of Service. — The length of time 



that a member has been e 



ed in the 



«gag 

actual performance of patrol duty as an 
enforcement member; 

f37) Lieutenant. — A commissioned officer in 

the patrol who ranks below a captain 

and above a first sergeant; 

Lieutenant Colonel. A commissioned 



officer in the patrol who ranks below 



the colonel and above a major and who 
serves as the patrol executive officer; 

f39) Line — Sergeant. A — noncommissioned 

officer in the patrol who ranks below a 
first sergeant and above a trooper and 
who supervises a number of troopers on 
the road; 

<^0) Major — A commi s sioned officer in the 

patrol who ranks below the lieutenant 
colonel and above a captain; 

^M) Master Trooper. A trooper who has 

completed — sm — years — ©f — satisfactory 
s ervice and who has been recommended 
and accepted for promotion to this rank; 

03) Medical Review Officer. — The medical 

doctor under contract with the Patrol 
responsible for administering the Patrol 
Medical Scr i 'iccs Program; 

f^^) Member. — All uniformed personnel who 

are — charged — with — enforcement — duties, 

including troopers and officer s , 

noncommissioned and commissioned; 

f34) Military — Leave. Tbe — period of time 

during which a member is granted leave 
from the patrol when called to perform 
active military service; 

fi§) Noncommissioned Officer. A 

uniformed member who holds the rank 
of sergeant or first sergeant; 

(36) Off — Duty. Time — during — which — a 

member is authorized to be free of the 
respHjnsibility — ef — performi flg — routine 
patrol duties; 

07) Order. Ah — instruction — ©f — directive, 

either — written — er — ©rat; — issued — hy 
sup)crior officers to subordinates in the 
course of patrol duty; 

08) Patrol. — The State HighwTiy Patrol as an 

organization, — including — aH — employees, 
both enforcement and civilian; 

09) Patrol Commander. The commanding 

officer — ©f — the — Highway — Patrol, — wh© 



m^ 



holds the rank of colonel; 
Patrol Executive Offic e r. 



The officer 



s econd in command of the patrol; 

f44) Patrol Order. — An inclusive term which 

applies — t© — the — Patrol — Manual, — a 

directive, mie-, regulation, general 

order, — special — order, — administrative 
notice, or written procedure; 

(43) Policy. — A guiding principle or cours e 

©f — action — designed — te — influence — aad 
determine decisions, actions and proccdurca; 

(43) Probation. — A 12 month trial period in 

which a member' s fitne ss fef 



244 



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PROPOSED RULES 



membership in the patrol is tested; At 
the — ead — ef — thk — pwriod, — the — Patrol 

Commander evaluates a member' s 

performance and determines whether or 
not he may continue as a member of the 
patrol; 

04) Probationary' — Member. Af^i' — member 

who has been employed by the patrol 
for less than the — 12 month probation 

period; Members are also subject to 

the provisions of Chapter 126 of the 
General — Statutes — ef — North — Carolina, 
and. pursuant thereto, — do not become 
"permanent state employees" until s uch 
time — as — th^i" — have — been — continuously 
employed by the state for five year s ; 

0#) Procedure. The — officially — es tablished 

method — fef — dealing — v.4#i — a — given 
s ituation — ef — performin g — a — s peeific 
activity; 

06) Rank. A — s pecific — level — of authority 

within — the — organizational — s tructure — ef 
the patrol; 

07) Recommendation. — An inve s tigator' s or 

supervi s or's suggested cour s e of action 
which i s forwarded to the approprmte 

supervisor — through tbe — chain el 

command — with a completed report of 
investigation; 

08) Re s ignation. Voluntary tcrmmation of 

s ervice by a member of the patrol; 

09) Retirement. Termination — ef — active 



-efi 



iber with the 



ibcr of 



service or a memt>er witn tne numt 
year s of creditable s ervice required by 
s tatute — te — be — eligible — fef — retirement 
benefits, or termination of service due 
to incapacitating disability; 

(50) Secretary. The — secretary — ef — the 

Department — ef — Crime — Control — and 
Public Safety; 

(§4) Section. Any — of the — five — functional 

subdivision s of the patrol commanded 
by a major administrative services. 



communication s 



and 



logistics, 
inspection and internal alTair s , zone one 
opemtions and gone two operations; 

(53) Section Director. — A zone dir e ctor or an 

equivalent s ection commander in a staff 
position; 

(55) Senior Trooper. A trooper who — has 

completed — three — year s — ef — satisfactory 
s ervice and who has been recommended 
and accepted for promotion to this mnk; 



(54) Sergeant. A noncommissioned officer 

in the patrol who mnks below a fir s t 
sergeant and above a troop > er; 

(55) SfKicial Order. — A wnttcn order issued 

by the — Patrol — Commander relating — te 
personnel matters; 



(56) Sup>crvisor. 



+58)- 



-A- 



commis s io 



ned 



noncommi s sioned officer assigned 

supervisory — control — and — direction — ef 
members; 

Action taken 



(5^?) Susp>cn 



s ion. — Action toKen in rcmovmg 
a member from duty without — pay — (n 
order to inve s tigate an alleged violation 
of patrol p)olieies. rule s , regulations or 
directives; Suspen s ion without pay may 
continue until a full and final re s olut i on 
of the matter i s reached; 

Troop. A — subordinate — anrt — within — a 

zone which encompasse s s everal 

districts — and — is — commanded — by — a 
captain; 



(59) Troop Commander. 



-A captair 



respon s ible — fi»f — the — sup>ervi s ion and 

control of a patrol troop; 
f60) Troo{)er. A — uniform e d — member who 

doe s net held commissioned er 

noncommissioned officer rank; 
(64) Unit. A Highv i ny Patrol troop or an 

equivalent organizational s ubdivision 

commanded by a captain; 
(63) Unit Commander. — \ troop commander 

or an equivalent commander in a staff" 

po s ition who hold s the rank of captain; 
(63) — Warrant Officer. An officer, usually a 

s killed technician, intermediate in mnk 

between a noncommi ss ioned officer and 

a commissioned officer; 
(64) Zone. A gcogmphical — subdivision of 

the Highway Patrol which encompa s se s 

fettf — ef — the — patrol' s — eight — troops. 

commanded by a major; 
f65) Zone Director. — A major re s ponsible for 

the — s upervi s ion — and — control — ef — a 

Highway Patrol zone. 



Statutory Authority G.S. 20-184; 20-185: 20-187; 
20-188. 

SUBCHAPTER 9H - ENFORCEMENT 
REGULATIONS 

SECTION .0100 - ENFORCEMENT 
ACTIONS 



.0101 ARREST POLICY 



NORTH CAROLINA REGISTER 



May 16, 1994 



245 



PROPOSED RULES 



{ft) Members — shall — issue citations — or make 

arrests only for definite, clear cut and s ub s tantial 
violations. — Members s hall not issue citations nor 
make — arrests — fef — frivolou s , — technical, — ©f 
borderline violations. Factor s s uch as race, a ex, 
economic status, or familial, political or fraternal 
affiliation shall not influence a member in any 
manner what s oever. 

{H — The m e mber shall issue the pink copy of 
the — North — Carolina — Uniform — Citation — fef= — aH 
definite, clear cut and substantial violation s — M 
the — member — has — reason — te — believe — tlwt — the 
offender is not likely to s ubmit to the jurisdiction 
of the court as cited, or if the offense is one 
which require s arrest, he shall arrest the offender 
and shall without unreasonable delay take him 
before a judicial official of the General Court of 
Justice — as — defined — m — N.C. — General — Statute s 
Chapter — \SA — and — as — provided — m — Regulation 
.0103 of this Section. 

iej — Upon arrest, the member shall, without 
unnecessary — delay, — advise the offender of his 
right to communicate with counsel, family and 
friends, and mu s t allow him reasonable time and 
opportunity to do s o. 

(d) Members — shall — inform — every — accused 

person of the specific law which he is charged to 

have — violated. W — fact s — -are — s ub s equently 

discovered which require additional charges to 
be filed, the offender shall be inform e d of the 
additional charges prior to trial time. 

i&j — Warning tickets may be issued by members 
for the following reasons: 

i^ upon discovery of a mechanical defect 

in a vehicle which needs correction 
btrt — which — dees — net — amount — te — a 



defin i t e . 



cl e ar cut. 



sub s tantial 



violation of the motor vehicle laws; 

(i) fef — conduct — con s tituting — a — potential 

hazard to the motoring public which 
does — net — amount — te — a — definite, 
clear cut, s ub s tantial violation of the 
motor vehicle laws; 

-te — require — a — driver — t© — produce — hts 
driver's — license — ef — motor — vehicle 



f^ 



registration card at a later time. 

Statutory Authority G.S. 20-4.19; 20-49; 20-183; 
20-184; 20-185; 20-187; 20-188; 15A-401; 
15A-501. 

.0103 BAIL BOND 

ift) — When a pwrson is arrested for an offense, 
the person shall be taken without undue delay to 
a judicial official of the General Court of Justice 



where a warrant s hall be prepared according to 
law and s erved on the individual. — Bond, if any? 



s hall be set by the judicial official. — No money, 



s ecurity, bail bond card, or other article of value 
s hall b e accepted by members. 
fb) When a — member cites — an offender to 



appear in court, he should cooperate with the 
offender in giving appropriate directions to the 



appropriate court — seat and — should in — ne — ease 



accept any money, bail bond, bail bond card, 
s ecuritie s — or other articles — of value — from — the 
offender. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188; 15 A-501. 



,0104 OPERATOR'S LICENSE TO 
REMAIN IN DRIVER'S 
POSSESSION 



When an arrested person i s allowed to drive hi s 
vehicle to a judicial official's office, he should 



have in his possession both his operator's license 



and the registration card for the vehicle he is 
op)e rating. At — ne — ttme — shall — the — member 



e s corting an arrested p>erson keep these item s in 
his po ss ession while allowing an arrested person 

tt^ rli-Hfn ii in irnVimln tn f Vi n illHimnl r^ffifiinl^a 



vehicle — t© — the judicial — official's 



t© — driv e — hi* 
office. 



Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188; 20-7. 

.0105 VALIDATING CITATIONS 

Members — s hall — deliver — the — N.C.U.C. — te — a 



judicial official of the General Court of Ju s tice, 



for validation as s oon after issuance as pmctical. 
jn no case shall a member fail to deliver th e 



N.C.U.C. within five calendar days of issuance, 
or prior to the designated court date, whichever 
should come first. 



Statutory Authority G. S. 
20-185; 20-187; 20-188. 



15A-302; 20-184; 



SECTION .0200 - CIVIL DISTURBANCES 

.0201 REQUEST FOR ASSISTANCE 

(a) In the event state assistance is deemed 
necessary by local officials to assist with riots, 
mob violence or other civil disturbances, local 
government officials s hould will contact the local 
Highway Patrol troop commander, district 
supervisor, patrol communications center, patrol 
headquarters in Raleigh, or any available patrol 



246 



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May 16, 1994 



PROPOSED RULES 



member. Lxjcal officials should state the nature 
of the emergency and the need for state 
assistance. 

(b) If time will permit, a patrol member 
should may be immediately assigned to the scene 
to assess the situation and to inform patrol 
headquarters officials as to the existing situation 
and as to assistance needed. 

(c) The patrol member assigned to assess the 
situation shall ascertain the following: 

(1) whether local authorities have utilized 
all of their own forces and are unable 
to control the situation; or 

(2) whether control of the situation is 
beyond the capabilities of the local 
authorities; or 

(3) whether local authorities are taking 
appropriate action. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

SECTION .0300 - WRECKER SERVICE 

.0301 IMPARTIAL USE OF SERVICES 

Mcmbcra — ef — the — patrol — s hall — be — ab s olutely 
impartial — m — using — private — wrecker — s ervices. 

Members s hall, whenever — po ss ible and 

praoticablc, dispatch (he wrecker scrvioe 

requested — by — the — motori s t — requiring — sueh 
s ervices. 

Statutory Authority G.S. 20-184; 20-185; 20-187: 
20-188. 

L0302 ROTATION OF WRECKER 
REQUESTS 

iei) When — a — motori s t — dees — net — request — a 

^articular wrecker service, mcmbcra shall inform 
ho tclccommunioator as to the person making 



*e- 



^4»*H- 



inform the 



request &*€ 

e lecommunieator — that — the — person — has — ho 

)rofcrence — as — te — a — wrecker — service. Troop 

!!)ommandcrB may arrange for telccommunicators 
maintain a computerized rotation wrecker log 
> n which private busines s concerns — providing 
Icpcndablc, — 2 4 hour wrecker — s ervice — taay — be 
iatcd at their request, — provided they conform 
vith — the — laws — governing — the — operation — »f 

vreckers. Telccommunicator s s hall be 

caponsiblc — fef — assuring — that — eaeh — service — is 
ailed on a regular and equal — rotating basis, 
inlcs s — emergency — circumstance s require — a 



eviation from the rotation policy, a s described 



] Pamgraphs (c) and (d) of this Regulation, or 



the Troop Commander approve s the u s e of a 

"Zone — Wrecker — Services" concept — fef — a 

particular jurisdiction because ef special 

con s iderations 

{bj — The tclecommunicator shall enter m the 
computerized — log — the — name — ef — the — wrecker 
s ervice contacted and the response by the service 
to the request. — The date and time of the call is 
automatically recorded in the computerized log 
as — weH — as — the — identification — number — ef — the 
tclecommunicator making the entry. 

(e3 — When an emergency exists, member s shall 
not be required to call wreckers requested by 
motorists or required by the rotation log, but 
s hall instead call th e nearest available wrecker 

s ervice, — when — an — emergency — exists. (i-er 

example, — when — traffic — congestion — is — a — major 
problem, — when — persons — are — pinned — m — the 
wreckage, when danger of fire or explosion i s 
pre s ent, — or — when — other — emergency — situations 
exi s t.) 

(d) — In the event the computerized rotation log 
is — not — ffl — s ervice — (CAD — down), — the — member 
reque s ting — wrecker — s ervice — shaH — be — notified. 
The member s hall reque s t the nearest available 
rotation wrecker. — The request s hall be entered 
on the s lip log by the communications center as 

"CAD DOWN/NEAREST ROTATION 

WRECKER REQUE S TED BY (UNIT CALL 
NUMBER)". 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 



.0303 RECORDING WRECKER 
REQUESTS 

{a^ — Members investigating accidents shall enter 
on the Accident Report Form the authorization 
for removal of vehicles from the scene. 



(b) — Troop 
te — submit — 



commanders 
written 



imbcrs 



may require men 
verification — ef — v i Tcckcr 



requests. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188' 

,0304 IMPARTIAL USE OF SERVICES 

In order to perform its traffic safety functions, 
the Highway Patrol is required to use wrecker 
services to tow disabled, seized, wrecked, and 
abandoned vehicles. Members of the Highway 
Patrol shall assure the impartial use of wrecker 
services. Wrecker service includes any motor 
vehicle towing service which uses wreckers, 
rollbacks, cranes, or other such equipment. 



:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



247 



PROPOSED RULES 



Statutory Authority G.S. 20-184; 20-187; 20-188; 
143B-10. 

.0305 ROTATION, ZO>fE, CONTRACT, 
AND DEVIATION FROM SYSTEM 

(a) The Troop Commander shall arrange for 
the telecommunications center to maintain an 
impartial system within each district of the Troop 
which may include the following: 

(1) A computerized rotation wrecker log 
for the entire district whereby wrecker 
services are called in the order they 
appear on a log; 

(2) A zone system within the district with 
a rotation wrecker log being main- 
tained in each zone; 

(3) A zone or contract system operated in 
conjunction with one or more local 
agencies; 

(4) A rotation wrecker log, zone, or 
contract system for wreckers based 
upon size and capacity of the equip- 
ment and/or availability of repair 
services; or 

(5) A combination of any such system. 

(b) It is the policy of the Highway Patrol to 
use the wrecker service requested by the vehicle 
owner or person in a pparent control of the motor 
vehicle to be towed. Patrol members shall not 
attempt to influence the person's choice of 
wrecker services, but may answer questions and 
provide factual information. If no such request 
is made, the Patrol system in place in the district 
will be used, absent an emergency or other 
legitimate reason. 

(c) The Troop Commander, in h]s discretion, 
may deviate from any of these Rules if there are 
insufficient wrecker services of the type needed 
within a district to meet the needs of the Patrol. 

(d) When exigent circumstances require, a 
telecommunicator may deviate from the Patrol 
system or the wrecker service requested by the 
motorist. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0306 WRECKER SERVICE 
REGULATIONS 

(a) In order to assure that the needs of the 
Patrol are met, the Troop Commander shall 
include on the Patrol wrecker system only those 
wrecker services which agree to comply with the 
following requirements: 



m 



m 



£3} 



Have a safe storage area for all vehi- 
cles towed. This storage area may be 
a locked building or a secured, fenced 
area where the stored vehicles and 
other property are not accessible to 
the public. 

Equip each wrecker with legally 
required lighting and other safety 
equipment to protect the motoring 
public and maintain such equipment in 
good working order. 
Equip each wrecker with brooms, 
shovels, etc. to remove debris from 
the highway and agree to clear the 
highway prior to leaving the scene of 
any collision. 
(4) Be available to the Patrol and the 
general public on a 24-hour basis and 
be willing to accept collect calls from 
the Patrol. 

Consistently respond, under normal 
conditions, in a timely manner. 
For Patrol involved incidents, respond 
only upon request from proper Patrol 
authority and not use scanners or 
other police radio monitoring equip- 
ment to respond to a disabled vehicle 
or wreck. 

Impose reasonable charges for work 
performed and present one bill to 
owner or operator of towed vehicle. 
Wrecker services may secure assis- 
tance from another wrecker service 



(5} 
16) 



01 



£8} 



£9} 
(10) 

OD 
(12) 



when necessary, but only one bill is to 
be presented to the owner or operator 



of the vehicle for the work performed. 
Allow only wrecker operators who 
have valid drivers licenses for the type 
of vehicles driven and require each 
operator to conduct himself or herself 
in a proper manner at all collision 
scenes and when dealing with the 
public. 
Adhere to all statutes regarding solici- 



tation of business from the highway. 
Employ only wrecker operators who 
demonstrate an ability to perform 
required services in a safe, timely, 
and efficient manner. 
Adhere to all applicable laws relating 
to wrecker services, including licens- 



ing, taxes, and insurance. 
Notify the Patrol without delay when- 
ever the wrecker service is unable to 
respond to a call. 



248 



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NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



(13) Mark each wrecker service vehicle 
with the name and telephone number 
of the business. 

(14) Secure all personal property at the 
scene of a collision to the extent 
possible, and preserve personal prop - 
erty in a vehicle which is about to be 
towed. A wrecker service is not to be 
held responsible for personal items 
which do not come into the possession 
of the service. 

(15) Make all complaints to the Patrol 
regarding any incident involving the 
Patrol within 30 days of the alleged 
incident. 

(16) The owner shall ensure that the own- 
er, each wrecker driver, or other 
employee or agent involved in the 
wrecker service has not been convict- 
ed at any time of a felony arising out 
of the operation or use of a vehicle. 
or a felony involving force, violence, 
theft, embezzlement, forgery, fraud, 
false statement, sexual conduct, or the 
manufacture, sale, transportation, or 
possession of a controlled substance 
or alcoholic beverage, or convicted 
within the past five years of any other 
felony or a misdemeanor involving 
fraud, forgery, embezzlement, theft, 
force, or violence, controlled sub- 
stances or sexual misconduct. Within 
10 days of the employment of any 
person or upon the request of a mem- 
ber of the Patrol, the owner of the 
wrecker service agrees to supply the 
Patrol with the full name, current 
address, date of birth, social security 
number, and drivers license number 
and state of issuance for the owner, 
wrecker driver, or other employee or 
agent involved in the wrecker service. 

(17) Upon request or demand, return per- 
sonal property stored in or with a 
vehicle, whether the towing, repair, 
and/or storage fee on the vehicle has 
been or will be paid. 

(18) Tow disabled vehicles to any destina- 
tion requested by the vehicle owner or 
other person with apparent authority. 

(19) Agree that being called by the Patrol 
to tow a vehicle does not create a 
contract with or obligation on the part 
of Patrol personnel to pay any fee or 
towing charge except when towing a 



vehicle owned by the Patrol, a vehicle 
is later forfeited to the Patrol, or 
when a court determines that the 
Patrol wrongfully authorized the tow 
and orders the release of the vehicle 
without payment of transportation and 
storage fees. 

(20) Agree that being placed on the Patrol 
system does not guarantee a particular 
number of calls or the same number 
of calls as any other service, or com- 
pensation when not called in accor- 
dance with the system or removed 
from the system . 

(21) Agree that the failure to respond to a 
call by the Patrol will result in being 
placed at the bottom of any rotation 
wrecker log, and consistent failures to 
respond will result in removal from 
the system . 

(b) The District First Sergeant shall perform a 
background investigation on each wrecker ser- 
vice desiring to be placed on the F^trol wrecker 
system and determine if the wrecker service 
meets the requirements set forth in this Rule. 
The District First Sergeant shall be responsible 
for monitoring complaints and for conducting 
random checks of compliance with all require- 
ments. 

(c) The Troop Commander shall provide that a 
wrecker service will only be included once on 
each log. In order to be listed on a log within a 
district or zone, a wrecker service must have a 
fu ll-time office, manned and open for business at 
least five days per week, and a secured lot with- 
in the district or zone. A wrecker service may 
not, through contract or agreement to provide 
wrecker service for service stations, garages, or 
other business, be listed through another compa- 
ny. Exceptions to this requirement may be made 
for specialized or large capacity wreckers when 
none are available in a zone or district. 

(d) The Troop Commander may place wrecker 
services on the Patrol system which do not meet 
all of the requirements contained In this Rule jf 
the Troop Commander determines there are an 
insufficient number on the system \n that area to 
meet the needs of the Patrol. 

(e) If the Troop Commander chooses to use a 
contract, zone, or other system administered by 
a local agency, the local agency rules govern the 
system. 

(f) A wrecker service which is denied inclu- 
sion on the Patrol wrecker service system may 



NORTH CAROLINA REGISTER 



May 16, 1994 



249 



PROPOSED RULES 



appeal this decision to the appropriate Zone 
Director at Patrol Headquarters in Raleigh. NC. 

(g) A wrecker service denied inclusion on the 
Patrol wrecker system may reapply at any time 
that the wrecker service can show by cleai and 
convincing evidence that it meets the require- 
ments for inclusion. The Troop Commander 
may order an additional investigation. The 
wrecker service shall be included on the fatrol 
system when the wrecker service shows the 
Troop Commander by clear and convincing 
evidence that it meets all requirements for inclu- 
sion. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0307 REMOVAL OF WRECKER 
SERVICE 

(a) Once a wrecker service is placed on the 
wrecker service system, the District First Ser- 
geant may remove a wrecker service which does 
not comply with the rules and policies of the 
Patrol. Absent exigent circumstances, at least 
seven days prior to removal, a District First 
Sergeant shall notify a wrecker service in writing 
of the reason for the removal . 

£b) A wrecker service which has received 
notice of removal from the Patrol wrecker ser- 
vice system by the District First Sergeant may 
appeal to the appropriate Troop Commander or 
his designee. If the appeal is received at least 
five days prior to removal, the hearing shall be 
held prior to removal . Otherwise, the hearings 
shall be held within 10 days of receipt of the 
appeal . The Troop Commander may uphold the 
decision of the First Sergeant or he may order 
the wrecker firm to be placed back on the rota- 
tion system . No wrecker service which is re- 
moved is entitled to additional calls, priority 
listing, or other compensation rf placed back on 
the Patrol system. 

(c) A wrecker service removed from the list 
may reapply at any time it can demonstrate it 
will comply with all rules. The Troop Com- 
mander may order additional investigation. TTie 
Troop Commander shall place the wrecker ser- 
vice back on the list when the Troop Command- 
er has been presented clear and convincing evi- 
dence by the wrecker service that it now com- 
plies and will comply with all rules in the future. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 



SECTION .0400 - TRAFFIC ACCIDENT 
INVESTIGATION 

.0401 ASSISTING CFVILIAN 
INVESTIGATORS 



(a) — Member s may return to an accident occnc 
te — assist interested persons with — investigations 



provided that they shall only provide a factual 



description of the scene and shall not express 
any opinion as to the reason for the accident or 



as to the fault of any person involved in the 
accident. 

(b) — Members may return to accident scenes to 
assist the district attorney with the investigation 
of criminal eases. 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0402 ACCIDENT REPORT COPIES 

(a) — Traffic accident reports may be reproduced 



at district headquarters or other Patrol installa 
tion s that have the reque s ted report on file. 
{¥) — Accident rcfwrts shall be under the control 



of the district sergeant and shall not be removed 



from the district office except by patrol member s 
for official purposes. — Reproduced copies may be 



provided upon request in accordance with Dircc 
tivc 31. 

iej — Nothing in this Regulation shall prohibit 
members from using accident reports to release 
authorized information to the news media. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188; 20-1 66. l'. 

SECTION .0500 - PATROL ESCORTS 
AND RELAYS 

.0501 ESCORTING EMERGENCY 
VEHICLES 

Members shall not escort ambulances or oth e r 
emergency vehicles unles s 9 p>ccial eircumstanoca 



r e quire. — Exceptions may be made when a driver 



of an emergency vehicle cannot reach a hospital 
or other destination without as s istance. 

Statutory Authority G.S 20-184; 20-185: 20-187; 
20-188. 



.0502 ESCORTING PRIVATE 
VEHICLES 



Member 



shall 



vehicles 



tempers — snail — net — escort — pnvate — v< 
making emergency — runs unless — sp>ccial eircum 
s tances require. 



250 



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NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0503 ESCORTING FUNERAL 
PROCESSIONS 

Members aholl not escort funcml proce s sions 
without authoriaation from a supervisor. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 



.0504 ESCORTING GROUPS 

Members shall not provide a patrol escon for 
any organization or group without prior authori 
zation from a unit commander or higher authori 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

SECTION .0600 - USE OF 
PATROL CARS AlVD AIRCRAFT 

.0601 WHO MAY DRIVE 

Only the peroon s li s ted in thi s Regulation are 
authorized to drive patrol car s : 

f+) enforcement members whil e on duty, 

(3) a patrol mechanic while road te s ting a 

vehicle or while delivering a vehicle to 
a member or to a garage, 
^ a civilian while tran s porting a member 



to a hospital who is 
illness or injury, 



incapacitated by 



f4) civilian employee s of the patrol when 

authorized — by — a — ttftit — commander — of 

higher authority, 
(53 eivilian mechanics on premise s of go 

rage or s ervice s tation s while s ervicing 

patrol vehicle s . 



.0603 REQUEST FOR TRANSPORTATION 

(a) Any request from the Governor or the 

Secretary of Crime Control and Public Safety for 
patrol — tmn s fHjrtation — ef — service s — s hall — be 
acknowledged and handled immediately. 

fb) — All reque s ts for s ecurity, medical or other 
emergency as s istance shall be assessed by the 
troop — commander — ef — higher — authority — fef 
approval based on need. 

{&) — Requests from other governmental officials 
fef — patrol — transportation — or s ervice s — s hall — be 
granted — eniy — on — approval — h^ — th« — Patrol 
Commander or the Secretary of Crime Control 
and Public Safety. 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0604 MEMBERS TO BE IN UNIFORM 

Member s s hall be in uniform while op>crating a 
patrol vehicle unle s s granted f>ermission to wear 
civilian apparel by a unit commander or higher 
authority. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0605 USE OF AIRCRAFT 

Members s hall not u s e private or state owned 
aircraft — in — performing — Highway — Patrol — official 
functions, whether on or off duty, without first 
obtaming approval of the Patrol Commander or 
his designated representative. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

SECTION .0700 - USE OF 
PHYSICAL FORCE: FIREARMS 



>tatutory Authority G.S. 20-184; 20-185; 20-187; 
10-188. 

0602 UNAUTHORIZED PASSENGER 

Member s — shaH — ftei — tran s port — unauthorized 



le rsons in patrol — vehicle s . — Authorized pcr s or 



its, witnesses, pri s oners or other persons when 



lay be transported when circumstances require. 



'or purposes of this — Rule authorized — persons 
hall include accident victims, stranded motor 



s quired in line of duty or authorized by a first 



in nnc ot duty or 
ergeant or person of higher rank. 



tatutory Authority G.S. 20-184; 20-185; 20-187; 
0-188 



.0701 USE OF FORCE 

Members s hall u s e physical force in arrest and 
custody s ituations in strict conformance with the 
United States Constitution and the Constitution 
and laws of North Carolina as stated in G.S. 
15A 101. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188; 15A-401. 

.0703 FIREARMS PROCEDURES 

Members s hall be governed by the following in 
the use of firearms: 



NORTH CAROLINA REGISTER 



May 16, 1994 



251 



PROPOSED RULES 



f4^ Members — shaH — use only patrol issued 

ammunition — m — patrol issued — firearms 
while performing enforcement dutie s . 
Members — shaH — never — ftfe — waming 






s hots. 



(5^ 



Members — shaH — net — remove — sideorms 
from holsters except for authorized use 
m — accordance — Vir4th — tbis — Section, — fef 
inspection by a superior officer, or for 
other authorized purposes. 
Members shall not p>crmit any person, 
other — than — anoth e r — member, — te — use 
patrol firearms- 
Members — wh« — discharge — any — firearm 
while — »n — duty. — either — intentionally — er 
accidentally, s hall file a written report 
te — the — Ratfej — Commander — through 

official — channels. This — requirement 

shall not apply to members engaged in 
firearm s practice. 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0704 INVESTIGATION AND 

REPORTING OF FIREARMS 
INCIDENT 

{et) — A member s hall immediately report to his 
immediate s up>crvisor every u s e of a firearm in 
the — {Xirformo nee — ef — his — dtrty — net — related — te 
training. — The supervisor shall carefully examine 
all the fact s and circumstances surrounding the 
incident and determine compliance with — patrol 
rules, directives, and procedures. — A full written 
rcjx)rt of the incident and inve s tigation shall be 
sent through channels to the Patroi Commander. 

fb) A — member — involved — in — an — intentional 

shooting incident which results in personal injury' 
ef= — property — damage — shaH — immediately — be 

relieved from n ormal — dtrty — and — assigned 

administrative — duties — by — the — vtmt — commander 
ttntii — completion — ef — an — mvc s tigation — and — an 

TTie — ttnit — commander 



administrative — review. 



s hall — complete — an — investigation — and — submit — a 
written — report — (within — 48 — hours — i^ — possible) 
through — the — chain — of command — te — the — Patroi 

Commander. A — review — and — recommendation 

must be made by each — level in the chain of 

command. W — tite — preliminary — investigation 

discloses — any — irregularitie s — regarding — state — ef 
federal law or patrol policy, the member shall be 
s uspended — as — provided — in — Subchapter — 9^ 

R e gulation — .0202 of this — Chapter. If the 

investigation does not di s close any irregularitie s , 
the member may be re as s igned to normal duty 



by the Patrol Commander unles s circumotonccs 
dictate otherwise. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188. 

SECTION .0800 - PERSONS IN 
CUSTODY 

.0801 SEARCH FOR WEAPONS 

Members shall search all prisoners and take 
po s session — ef — aH weap>ons — and — evidence. 



Exceptions may be made to thi s Rule as noted in 
Rule .0802 in thi s Section. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188; 15A-231; 15A-401. 

.0802 SEARCH OF PRISONERS 
OF THE OPPOSITE SEX 

^a) — A member shall search a prisoner of the 



opposite s ex only when an immediate search is 



necessary to assure the s afety of the prisoner, 



member or others, or to preserve evidence which 
might otherwise be destroyed. — If a member of 



the same sex as the prisoner i s not available, 
only a pat down s earch will be conducted unless 



circumstance s — warrant — an — immediate, — thorough 
search . 
{b) — A pat down s earch may be delayed until 



the arrival of a second officer. If a s econd 



officer is not available and/or there is a safety 
issue, the pat down search will not be delayed. 
{e) — Searches made under such conditions shall 



be made with all possible regard for decency 
and, if pHj s siblc, a witness should be pre s ent. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188; 15A-231; 15A-401. 

.0803 TRANSPORTING PRISONERS 

Members s hall s earch and handcuff all persons 



under arre s t or in custody prior to transportation 



and shall — not remove the handcuff s until the 
prisoner — is — delivered — te — a — detention — facility. 



Exceptions to this Rule may be made within th e 



di s cretionary guidelines of Directive 72, Security 
and Transportation of Prisoners. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188. 

.0804 TRANSPORTING PRISONERS 
OF THE OPPOSITE SEX 



252 



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NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



^a) — When tmnsportation of a pcraon of th e 
opposite gex — is — neces s ary. — a third — person, — if 
posoiblc, should be present throughout the trip. 
Exccptiona — m»f — be — made — whenever — it — is 
imposoiblc or impractical to have a third person 
present. 

(b) — Whenever it i s necessary for a member to 
transport a peraon of the opposite sex without the 
presence of a third person, he/ s he shall: 

ft) Notify' the telecommunicator on duty 

of the identity' and description of the 

peraon, reason f&f — arrest of 

transportation, — location, — de s tination 
and odometer reading. 

(3) Upon — arrival — at the destination — th« 

member s hall notify t-h-e 

telecommunicator of s uch arrival, with 

a repeat of the identity of the p>er s on 

transported and the odometer reading. 

(e) — Exceptions may be made to the Rules set 

forth in this Section in individual case s when 

authorized — by — a — Ftfst — Sergeant — ©r — higher 

authority. 

Statutory Authority G.S. 20-184; 20-185; 20-187, 
20-188. 



.0805 PROPERTY OF PRISONERS 

fa) Members — shaH — take — aH — reasonable 

measures to protect the f>crsonal property in the 



-ef- 



soncrs at the time of arrest or 



possession or pn 
detention. 

fb) — When a member stores or takes possession 
of a vehicle containing a domesticated animal or 
arrests an individual that has in his possession a 
domesticated — animal, — the — member — shall — make 
reasonable efforts to en s ure for the safety and 

well being — of th e — animal- Reasonable — efforts 

may include contacting th e animal's owner. — an 
immediate — family — member — of the — owner. — an 
Animal Shelter, or an Animal Control officer. 



Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188. 



SECTION .0900 - INFORMATION 
TO NEWS MEDIA 

0901 NEWS RELEASES 

Subject — te — the — restriction s — set — fef4h — ift 



i lcgulation .0903 of this Section, members m 



«f 



• e leosc information concerning patrol arrests and 



nvcstigations to news media personnel, provided 



l uch release of information will not jeopardize a 



continuing — investigation, — the — apprehension — ©f 
s u s pects or the prosecution of the case. 

Statutory Authority G.S. 20-184; 20-185; 20-187, 
20-188. 

.0902 INFORMATION WHICH 
MAY BE RELEASED 

Members 



may — make — public — the — fett 
information — m — cnminal 



eases — which 



owing 
do — not 



involve juveniles: 

H") the name. — ^e; — place — of — residence. 

employment, — marital — statu s — or s imilar 
background — information — of — a — person 
charged with an offense; 

(3) the offen s e charged; the time and place 

of arrest; whether weapon s were found 
or used; and description of evidence or 



(^ 



investigating and 



contraband seized; 

-the identity ef- 

arre s ting officers. 



Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188. 

.0903 EVFORMATION NOT 
TO BE RELEASED 

Members s hall not moke public the following 



information: 



-th< 






opinion s or other statements as to 
character, reputation, guilt or innocence 
of a p>crson charged with an offen s e; 
opinions or other statements as to the 
character or reputation of witnesses; 
opinions or other statements concerning 
the credibility of anticipated testimony 
of witnes s e s ; 






-a4 



missions, — confessions. — statements — ©f 
alibi s — attributed — t© — a — person — charged 
with an ofFense; 



-* 



■e results ©f any investigative 

procedure. — polygraph — examination — ©f 
laboratory' — test — involving — a — person 
charged with an offense; 

^6j the — refusal — ©f — a — person — charged — i© 

submit 1© any tesf; except that 

information concerning refusal 1© 

submit to a chemical — test for alcohol 
impairment may be released; 

fP) opinion s or other statements concerning 

the — plea — of a — person — charged — ©r — ©f 
possible disposition of a charge or case; 

f&) opinion s or other statements concerning 

evid e nce in a ca s e or concerning points 
of argument to be presented in court; 



h4 



NORTH CAROLINA REGISTER 



May 16, 1994 



253 



PROPOSED RULES 



^ statements concerning physical 

evidence: 



Hi4e 



tW) names — ef — juveniles — wbe — are — under 

investigat i on or who have been txiken 
into custody. 

Statutory Authority G.S. 20-184: 20-185; 20-187; 
20-188. 

.0904 ALLOWING PHOTOGRAPHS 
TO BE TAKEN 

(a^ — Members shall not prevent photographing 
ef — defendanta — in — public — places — except — ifl 
courtrooms and adjacent corridors as directed by 
the trial judge. 

fb^ — Members shall not pose an arrested person 
for nev . 's media photographers. 

{ej — Photographers shall not be prohibited from 
taking — photographs — of crashed — aire rafts — or of 
vehicles involved in traffic collisions. 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188. 

.0905 RELEASING NAMES OF 
DECEASED PERSONS 

Members shall use extreme caution in releasing 
the names of deceased per s on s to the new s media 
prior to — notification — of the — deceased — person's 
family. 



Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188. 

SECTION .1000 - LEAVING 
ASSIGNED DLT\' STATION 

.1001 LEAVING DISTRICT OR 
TROOP AREA 

fa) Members on duty shall — not leave their 

as s igned — d«ty — stations — without — authorization, 
except that members may leave assigned areas 
when in pursuit of a violator. 

fb) When not in pursuit, members on duty 

must have authorization — from — the district — fest 
s ergeant to leave assigned district or troop areas. 

Statutory Authority G.S 20-184; 20-185; 20-187; 
20-188 

.1002 LEAVING THE STATE 

fe) — Members shall not leave the stat e while on 
dtrty — except — when — authorized — ^r' — tbe — Patrol 
Commander — &f — hts — de s ignee. — et — when — eta 
emergency s ituation requires. 



<%) When on — emergency — situation — requires 

members to travel into another state. — members 
shall not remain in the other state longer than i s 
absolutely necessary. 

fe) — Members required to leave the state for 
emergency purposes shall be governed by the 
following: 

f4^ Members — shall — notify' — tbe — nearest 

patrol communications center of their 
call number, destination, mission and 
estimated time of return to the state. 
(3) Members shall notify' the patrol com - 
munications center immediately upon 
their return to the state, and the infer 
mation shall be entered on the com 
munieations log. 

0) Emergency — travel — authorization — Fe- 

poTta shall be filed with the district 
first sergeant as s oon as possible after 
returning to the state. — A single copy 
of the repKjrt will be filed for record 
purposes only at di s trict headquarters. 



Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188.' 

.1003 LEAVING THE STATE: PURSUIT 

t») — Members shall not leave the s tate in pur 



suit of a law violator without approval of the 
troop commander or higher authority. 

fb) — Members s hall not exercise the power of 
arrest in another state nor return on arrested 
person to this state except by due process of law. 

Statutory Authority G.S. 20-184; 20-185; 20-187; 
20-188; 15A-402. 



TITLE ISA - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Emironment, 
Health, and Natural Resources intends to amend 
rule cited as 15A NCAC IJ 0601. 

1 he proposed effective date of this action is 
September 1, 1994. 

Instructions on How to Demand a Public Hear- 
ing (must be requested in writing within 15 days 
of notice): Any person requesting that the Divi- 
sion of Environmental Management hold a public 



254 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



hearing on this proposed amendment must submit 
a written request by 5:00 p.m. May 31 , 1994. 
The request must be submitted to Mrs. Vega 
George, Division of Environmental Management, 
P.O. Box 29535, Raleigh, NC, 27626-0535. 

Ixeason for Proposed Action: The subject rule 
is contained within the rule Chapter pertaining 
to the State's Clean Witer Revolving Loan and 
Grant Program. It is identical to one contained 
within the new rules which have been developed 
to govern the Clean Witer Bonds Fund program. 
That rule has been modified as a result of com- 
ments received at a public hearing. Now it is 
necessary to make parallel changes to 15A 
NCAC IJ .0601 so that the two can again be 
identical. 

i^omment Procedures: Written comments 

should be submitted to the Division of Environ- 
mental Management, P.O. Box 29535, Raleigh, 
NC 27626-0535. W-itten comments will be 
accepted until June 15, 1994. Any person re- 
questing information concerning this proposed 
amendment should contact Mrs. Vega George at 
(919) 733-6900, ext. 628. 

CHAPTER 1 - DEPARTMENTAL 
RULES 

SUBCHAPTER IJ - STATE CLEAN 

WATER REVOLVING LOAN AND 

GRANT PROGRAM 

SECTION .0600 - PRIORITY CRITERIA 

FOR WASTEWATER COLLECTION 

SYSTEM PROJECTS 

0601 PUBLIC NEED 

Select One; Maximum Value— 25 points: 
(i) Project is intended to improve or ex- 
pand an existing system for which 
adequate wastewater treatment facilities 
af© will be provided by : 

(a) pr e s e ntly provid e d a regional 
wastewater management 
authority . 

(b) und e r oonBtruotion the 
applicant r. 
propoood. 



(2) 



25 points 

20 points 
15 pomto 

Project is intended to provide a basic 
system for a unit of government which 
is not presently served by an approved 



system and adequate wastewater treat- 
ment will be provided by: 

(a) other public s ystem a regional 
wastewater management 

authority . 20 points 

(b) the applicant. 15 points 

Statutory Authority G.S 159G-10; 159G-15. 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Division of mter 
Resources intends to amend rules cited as J5A 
NCAC 2E . 0107 and . 0301. 

1 he proposed effective date of this action is 
September 1 , 1994. 

1 he public hearing will be conducted at 6:00 
p.m. on May 31 , 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 N. Salisbury 
Street, Raleigh, NC 

ixeason for Proposed Action: To comply with 
Senate Bill 821. amending G.S 143-21 5.22(H). 
In 1993 the General Assembly amended General 
Statute 143-21 5.22(H) which requires all water 
withdrawals or transfers of one million gallons 
per day or more to register with the State. The 
Statute was amended to mclude ground water in 
the registration, add more required information, 
and exempt local governments with approved 
water supply plans on file with the state. The 
Statute also changed the registration from a one 
time registration to one that must be renewed 
every five years. The late penalty was also 
changed from 20% of the registration fee to $5 
per day that it is late up to $500. 

The Division of Wuter Resources has drafted 
proposed amendments to the existing rules so 
that these rules are consistent with the changes 
in the statute. Tlie purpose of the draft rule 
amendments is to match the Statute and to clarify 
the amendments in the Statute. The subject of 
this public hearing will be these draft amend- 
ments to the rules. 

i^omment Procedures: All persons interested in 
this matter are invited to attend. Submittal of 
written comments of oral comments are request- 



NORTH CAROLINA REGISTER 



May 16, 1994 



255 



PROPOSED RULES 



ed. For more information contact John D. 
Way. Division of Vibter Resources, P.O. Box 
27687. Raleigh, NC 27611-7687, telephone (919) 
733-4064. Written comments will be accepted 
after the hearing until June 15, 1994. 

Fiscal Note: I hese Rules affect the expendi- 
ture or revenues of local funds. A fiscal note 
was submitted to the Fiscal Research Division 
on February 2, 1994, OSBM on February 2, - 
1994, N.C. League of Municipalities on Febru- 
ary 2, 1994, and N.C. Association of County 
Commissioners on February 2, 1994. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2E - CAPACITi' USE 
AREA WATER WITHDRAWAL 

SECTION .0100 - CENTRAL PROVISIONS 

.0107 DELEGATION 

(a) The Director is delegated the authority to 
grant, modify, revoke or deny permits under 
G.S. 143-215.15 and G.S. 143-215.16. 

(b) The Director may delegate any permitting 
function given by the rules of this Subchapter. 

(c) The Director is delegated the authority to 
assess civil penalties and request the Attorney 
General to institute civil actions under G.S. 143- 
215.17. 

(d) The Director of the Division of Water 
Resources is delegated the authority to process 
applications and collect fees for registration of 
s urfao e water withdrawals and transfers under 
G.S. 143-215.22Hand G.S. 143-215. 3i[a)(lb). 

(e) The Director of the Division of Water 
Resources may delegate any surfao e water with- 
drawal or transfer registration processing func- 
tions given by the rules of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.3(a)(4). 

SECTION .0300 REGISTRATION OF 

WATER WITHDRAWALS AND 

TRANSFERS 

.0301 APPLICATION; PROCESSING 
FEES 

(a) Any person subject to G.S. 143-21 5. 22H, 
shall complete, sign, and submit an application 
for registration, on a form provided by the E)e- 



partment, to the Director of the Division of 
Water Resources. The registration application 
and registration processing fee (if applicable) 
shall be mailed to the Division of Water Re- 
sources, North Carolina Department of Environ- 
ment, Health, and Natural Resources, Post Of- 
fice Box 27687, Raleigh, North Carolina 27611- 
7687. 

(b) Except as otherwise provided in this Rule, 
a non-refundable registration processing fee in 
the amount of fifty dollars ($50.00) shall be paid 
when the registration application form is submit- 
ted - 

(1) No registration application form is 
complete until the registration process- 
ing fee is paid. 

(2) Each facility from which a person 
withdraws or transfers one million 
gallons per day or more must be 
separately registered. The registration 
application for each facility to be 
registered must include the fee in the 
amount set forth in these this Rule. 

(3) A late registration fee in the amount 
of 20 percent of the registration pro 
ccssing — fee — shall — be — assessed — as — a 
jX i nalt^' for failure to register by the 
deadline s set forth in 1991 N.C. Scs. 
Laws, c. 712, Sec. 3. in the amount 



of five dollars ($5.00) per day for 

each day the registration of a water 

transfer or withdrawal is late, up to a 

maximum of five hundred dollars 



($500.00), shall be assessed as a 
penalty for failure to register the 
water transfer or withdrawal in a 
timely manner. The penalty stops 
accruing on the date of receipt of the 
completed registration application by 
the Division of Water Resources. 



(4) 



Payment of the registration processing 
fee shall be by check or money order 
made payable to the "N. C. Depart 
ment of Environment, Health, and 
Natural Resources." The check or 
money order should refer to thfe water 
withdrawal or transfer registration 
application. 

(c) Except as otherwise provided in this Rule, 
upon receipt of a properly completed application 
form and the registration processing fee, the 
applicant will be issued a receipt of registration. 

(d) Pursuant to G.S. 143-215. 3(a)(la), and 
G.S. 143-215. 22H , no fees including late regis- 
tration fees for failing to register or update regis- 



256 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



trations in a timely manner , are required to be 
paid under this Rule by a former who submits an 
application for or an update of a registration of a 
withdrawal or transfer that pertains to farming 
operations. Upon receipt of a properly complet- 
ed application from a former, the applicant will 
be issued a receipt of registration. 

{el Pursuant to G.S. 143-215.22H(c). separate 
registration of a water withdrawal or transfer is 
not required of a local government that com- 
pletes and periodically revises and updates its 
water supply plan pursuant to G.S. 143-355(1) . 

(f) Any person who withdraws or transfers one 
million gallons or more in any single day must 
register the withdrawal or transfer. 

Statutory Authority G. S. 143-215.3 (a)(la); 143- 
215.3 (a)(lb); 143-215.22H; 143-355(1). 



Notice is hereby given in accordance with G.S. 
I50B-21.2 that the EHNR - Division of Viiter 
Resources intends to adopt rules cited as 15A 
NCAC2E .0401 - .0402. 

I he proposed effective date of this action is 
September 1, 1994. 

I he public hearings will be conducted at 5:00 
>.m. on May 31, 1994 at the Archdale Building, 
Iround Floor Hearing Room, 512 N. Salisbury 
>treet. Raleigh, NC. 

Xeason for Proposed Action: The 1993 Gener- 
d Assembly ratified Senate Bill 875 which regu- 
ates surface water transfers of two million gal- 
ons or more per day from one river basin to 
nother. In compliance with this act, the Divi- 
ion of Witer Resources has developed proposed 
ules to implement the provisions of the statutes 
G.S 143-21 5. 22G and 143-215.221). The 
roposed rules concern the applicability of the 
iterbasin transfer law and judicial review proce- 
ures. 



comment Procedures: All persons interested in 
lis matter are invited to attend. Submittal of 
ritten comments of oral statements are request- 
i. For more information contact: Tony Young, 
ivision of Vtbter Resources, P.O. Box 27687, 
aleigh, NC 27611, telephone (919) 733-4064. 



Written comments will be accepted after the 
hearing until June 15, 1994. 

riscal l\ole: Ihese Rules affect the expendi- 
ture or revenues of local funds. A fiscal note 
was submitted to the Fiscal Research Division 
on February 2, 1994, OSBM on February 2, 
1994, N. C. League of Municipalities on Febru- 
ary 2, 1994, and N.C. Association of County 
Commissioners on February 2, 1994. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2E - CAPACITY 
USE AREA WATER WITHDRAWAL 

SECTION .0400 - REGULATION OF 
SURFACE WATER TRANSFERS 

.0401 APPLICABILITY 

(a) Except as otherwise provided in this Rule, 
the withdrawal, diversion, or pumping of surface 
water from one river basin and the discharge of 
all or any part of the water in a river basin 
different from the origin is a transfer. A dis- 
charge associated with a transfer shall include 
any release, disposal, or use of water that js not 
returned to the source basin as defined in G.S. 
143-215. 22G(1). 

£b} Pursuant to G.S. 143-215.22G(3)(a) and 
143-215. 22G(3)(b), and notwithstanding the 
definition of basin in G.S. 143-215. 22G(1), the 
following are not transfers: 

(1) The discharge point is situated up- 
stream of the withdrawal point such 
that the water discharged will natural - 
]y_ flow past the withdrawal point. 

(2) The discharge point is situated down- 
stream of the withdrawal point such 
that water flowing past the withdrawal 
point will naturally flow past the 
discharge point. 

(c) The withdrawal of surface water from one 
nver basin by one person and the purchase of all 
or any part of this water by another party, result- 
ing in a discharge to another river basin, shall be 
considered a transfer. The person owning the 
pipe or other conveyance that carries the water 
across the basin boundary shall be responsible 
for obtaining a certificate from the Commission. 
Another person involved in the transfer may 
assume responsibility for obtaining the certifi- 



NORTH CAROLINA REGISTER 



May 16. 1994 



257 



d 



PROPOSED RULES 



cate, subject to a pproval by the Division of 
Water Resources. 

(dj According to G.S. 143-215. 221(b). a cer- 
tificate is not required to transfer water from one 
river basin to another up to the full capacity of a 
facility to transfer water from one basin to an- 
other if the facility was existing or under con- 
struction on July J_, 1993. The full capacity of a 
facility to transfer water shall be determined as 
the capacity of the combined system of with- 
drawal, treatment, transmission, and discharge of 
water, limited by the element of this system with 
the least capacity as existing or under construc- 
tion on July 1, 1993. 



Statutory Authority G.S. 143-21 5. 22G; 143- 
215.221; 143B-282(a)(2). 

.0402 JUDICIAL REVIEW 

Judicial Review of the Commission's decision 
shall be as provided in G.S. 143-215.5. 

Statutory Authority G.S. 143-215.5; 143B- 
282(a)(2). 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the DEHNR - Division of Envi- 
ronmental Managetnent intends to amend rules 
cited as 15A NCAC 2H .0901 - .0910, .0912, 
.0914 - .0917, adopt 2H .0918 - .0921. 

J. he proposed effective date of this action is 
November 1 , 1994. 

1 he public hearing will be conducted at 2:00 
p.m. on June 21, 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 N. Salisbury 
Street, Raleigh, NC. 

Ixeason for Proposed Action: Modifications are 
being proposed to incorporate new State and 
Federal requirements, to update terminology, 
and to enhance the quality of the Pretreatment 
Program. 

i^omment Procedures: Comments may be sub- 
mitted in writing prior to, during, or within three 
days after the hearing or may be presented orally 
at the hearing. Comments may be limited to 
three minutes at the discretion of the hearing 



officer. Submittals of written copies of oral 
statements is encouraged. Written comments 
should be directed to Ms. Julia Storm, DEHNR, 
DEM, P O. Box 29535, Raleigh, NC 27626- 
0535; Phone: (919) 733-5083, X522. 

riscal l\ote: I hese Rules affect the expendi- 
ture or revenues of local funds. A fiscal note 
was submitted to the Fiscal Research Division 
on April 21, 1994, OSBM on April 21, 1994, 
N.C. League of Municipalities on April 21, 
1994, and N. C. Association of County Commis- 
sioners on April 21, 1994. 

SUBCHAPTER 2H - PROCEDURES 
FOR PERMITS: APPROVALS 

SECTION .0900 - LOCAL 
PRETREATMENT PROGRAMS 

.0901 PURPOSE 

(a) The rules in this Section are designed to 
implement North Carolina General Statutes 143- 
215.3(a)(l4) and 143-215.1 and provisions of the 
Federal Water Pollution Control Act (also known 
as the "Clean Water Act") regarding the pretreat- 
ment of industrial discharges into publicly owned 
treatment works (POTWs). They establish re- 
sponsibilities of State and local government, 
industry, and the public to implement Pretreat- 



ment Standards to control pollutants which pass 
through or interfere with treatment processes in 
POTWs. which may contaminate sewage sludge. 
or which otherwise have an adverse impact on 
the PCTTW, its workers, or the environment. 
This S e ction is d e sign e d to provide proooduroo 
for submission, — revi e w, — and approval of loool 
pr e tr e atm e nt program o as well as proooduroo for 
the — impl e mentation — ef — approv e d — protrcatment 

programs. This S e ction also contains th e re 

quiremontfl — for varianc e s — from — oat e gorioal — pfe- 
tr e atm e nt standards — for fundam e ntally difforont 
faotoro. 

(b) Copies of R e gulations rules referenced in 
this Section may be obtained from the Division 
of Environmental Management, Water Quality 
Section at the following locations: 

(1) Pretreatment Offices 
Archdale Building 

R O. Box 29535, 512 N. Salisbury 

St., 

Raleigh. N.C. 27626-0535 

(2) Raleigh Regional Office 
3800 Barrett Dr., 



258 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



Raleigh, N.C. 27611 

(3) Asheville Regional Office 
+59 Woodfin St^PL, 
Asheville, N.C. 28801 

(4) Mooresville Regional Office 
919 N. Main St., 
Mooresville, N.C. 28115 

(5) Fayetteville Regional Office 
Wachovia Bldg. Suite 714, 
Fayetteville, N.C. 28301 

(6) Washington Regional Office 
1424 Carolina Avenue, 
Washington, N.C. 27889 

(7) Wilmington Regional Office 
127 Cardinal Drive Extension 7225 
Wrightavillc Ave , 
Wilmington, N.C. 28405-3845 

(8) Winston-Salem Regional Office 
8025 North Point Blvd., 
Winston-Salem, N.C. 27106 

tatutory Authority G.S. 143-215. 3(aj(14). 

)902 SCOPE 

These Rules apply to: 

(1) Pollutants from non-domestic sources 
covered by Pretreatment Standards 
which are indirectly discharged into or 
transported by truck or rail or otherwise 
introduced into POTWs as defined in 40 
CFR 403.3 and Ruje .0903 of this 
Section: 

£2] POTWs which receive wastewater from 
sources subject to Pretreatment Stan- 
dards: and 

(3) Any new or existing source subject to 
Pretreatment Standards. Pretreatment 
Standards do not apply to sources which 
discharge to a sewer which is not con- 
nected to a POTW treatment plant. 



10 Section — applie s — te — nondomcstic pollutants 



i vercd by 15A NCAC 2B .0 4 05(a) discharged 



to or otherwise tran s ported by truck or rail or 
herv.'i3c introduced into POTWs; to POTWs 



l iich receive wastewater from — sources — subject 



pretreatment — standards — established — tfi — }4A 



GAG — 3B — .0 4 05(a), — te — any — new — or existing 



urccs subject to pretreatment standard s ; and to 
yrWs which receive wastewater from sources 



bject to pretreatment standards established in 
mpliancc with 15A NCAC 2H .0909. 



itutory Authority G.S. 143-215. 3(a)(14). 
903 DEFINITION OF TERMS 



NORTH CAROLINA REGISTER 



(a) Unless otherwise defined in Paragraph (b) 
of this Rule, the The definitions promulgated by 
the Environmental Protection Agency and codi- 
fied as 40 CFR Part 403.3 are hereby adopted 
incorporated by reference including as amended 
through — March — h — 19 8 7 or any later adopted 
subsequent amendments er and editions of this 
document — as — is — allowed — by — G.S. 150B 1 4 (c) . 
This material is available for inspection at the 
Department of Environment, Health, and Natural 
Resources, Division of Environmental Manage- 
ment, Pretreatment Offices. Archdale Building. 
R a Box 29535. 512 N^ Salisbury St.. Raleigh. 
NC 27626-0535. Copies may be obtained from 
the US Government Printing Office Bookstore. 
R a Box 56445. Atlanta. Georgia 30343. 
phone number (404) 331-6947 at a cost of twen- 
ty-six dollars ($26.00). 

(b) For this Rule Regulation the following 
definitions in addition to those incorporated by 
reference in Paragraph .0903 (a) of this Rule 
shall apply: 

(1) "Approval Authority" means the 
Director of the Division of Environ- 



(2) 



(3) 



(4) 



m- 



£5} 



mental Management of the North 
Carolina Department of Environment. 
Health, and Natural Resources, or 
his/her designee. 

fH "Average" means the value calcu- 
lated by dividing the sum of the data 
values collected over a time period by 
the number of data points which 
comprise the sum. 

"Bypass" is the intentional diversion 
of waste streams from any portion of 
a pretreatment facility. 
(5) "Commission" means the Environ- 
mental Management Commission of 
the North Carolina Department of 
Environment, Health, and Natural 
Resources and — Community — Deve l op 
m e nt or its successor. 

"Committee" mean s the NPDES 

committee of the Environmental Man 
agemcnt Commission. 
"Compliance Judgment Point'' or 
"CJP" is the term used for a value 
used in calculating significant non- 
compliance. Compliance judgment 
points are calculated by summing the 
number of individual sample values 
for a parameter and the number of 
averages of sample values calculated 
for the same parameter during a six- 
month compliance judgment period. 



May 16, 1994 



259 



PROPOSED RULES 



16] 



(A) 



(B) 



(7) 



£8) 



(10) 



f4) "Control Authority" refers to: 
the POTW if the POTW's submis- 
sion for its pretreatment program 
has been approved and that approval 
has not been subsequently with- 
drawn , or; 

the approval authority if the submis- 
sion has not been approved or the 
Division has subsequently withdrawn 
pretreatment program approval . 
i^ "Division" refers to the North 
Carolina Department of Environment, 
Health, and Natural Resources asd 
Community Development , Division of 
Environmental Management. 
"Enforcement Response Plan" or 
"ERP" means the POTW pretreatment 
program document describing the 
guidelines for identifying violations of 
and enforcing specific local limits and 
other pretreatment standards and 
requirements. 

i€^ "EPA" means the United States 
Environmental Protection Agency. 
"Fundamentally Different Factors" are 
factors upon which a variance from a 
National Categorical Pretreatment 
Standard may be granted. These fac- 



tors are those relating to an industrial 
user that are fundamentally different 
from the factors considered during 
development of a National Categorical 
Pretreatment Standard applicable to 
that user and that may justify a differ- 
ent discharge limit than specified in 
the applicable National Categorical 
Pretreatment Standard. 



"Headworks Analysis" or "HWA" is 
the analysis used to calculate the 
maximum allowable POTW influent 
loadings for pollutants of concern 
based on pass-through, interference, 
sludge, or worker safety and health 
considerations. The headworks analy- 
sis is the technical basis for deriving 
local limits applied to industrial users. 

i^ "IDMR Form" or "IDMR" means the 

indirect discharger monitonng report 
mg form. 

(12) "Industrial Waste Survey" refers to 
the periodic survey of the users of the 
POTW performed by the POTW to 
determine those users meeting the 
criteria for Significant Industrial User 
status. 



(15) 



(16) 



(13) "Interference" refers to inhibition or 
disruption of the POTW treatment 
processes: operations; or its sludge 
process, use, or disposal which causes 
or contributes to a violation of any 
requirement of the POTW's NPDES 
or Non-Discharge Permit or prevents 
sewage sludge use or disposal in 
compliance with specified applicable 
State and Federal statutes, regulations. 
or permits. 

(14) "Long Term Monitoring Plan" or 
"LTMP" is the monitoring plan de- 
signed to collect POTW site-specific 
data for use in the Headworks Analy- 
sis. 

"Medical Waste" refers to isolation 
wastes. infectious agents, human 
blood and blood products, pathologi- 
cal wastes, sharps, body parts, con- 
taminated bedding, surgical wastes, 
potentially contaminated laboratory 
wastes, and dialysis wastes. 
"National Categorical Pretreatment 
Standard" or "Categorical Standard" 
refers to any regulation containing 
pollutant discharge limits promulgated 
by EPA in accordance with sections 
307rb) and {cj of the Act which ap- 
plies to a specific category of industri- 
al users, and which appears in 40 
CFR Chapter L, Subchapter >L Parts 
405-471. 

"National Prohibited Discharge Stan- 
dard" is an absolute prohibition 
against the discharge of certain sub- 
stances to the PCXTW, including both 
general and specific prohibitions. 
"Net/Gross Calculation" is an adjust- 
ment of a categorical pretreatment 
standard to reflect the presence of 
pollutants in the industrial user's 
intake water. 
"New Source" refers to: 

Any building, structure, facility, or 
installation from which there may be 
a discharge of pollutants, the con- 
stniction of which commenced after 



(17) 



(18) 



(19) 



lA} 



the publication of proposed categori- 
cal pretreatment standards under 



section 307(c) of the Act which will 
be applicable to such source if such 
standards are thereafter promulgated 
in accordance with section 307(c), 
provided that: 



260 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



£i} the building, structure, facility, 
or installation is constructed at a 
site at which no other source is 
located; or 
(ii) the building, structure, facility. 
or installation totally replaces the 
process or production equipment 
that causes the discharge of 
pollutants at an existing source; 
or 
(iii) the production or wastewater 
generating processes of the 
building, structure, facility, or 
installation are substantially 
independent of an existing 
source at the same site. In deter- 
mining whether these are sub- 
stantially independent, factors 
such as the extent to which the 
new facility is integrated with 
the existing plant, and the extent 
to which the new facility is 
engaged in the same general type 
of activity as the existing source. 
should be considered. 
(B) Construction on a site at which an 
existing source is located results in a 
modification rather than a new 
source if the construction does not 
create a new building, structure, 
facility, or installation meeting the 
criteria of Subparts (I9)(A)(ii) or 
(iii) of this Rule but otherwise al- 
ters, replaces, or adds to existing 
process or production equipment. 
(O For purposes of this definition, 
construction of a new source has 
commenced if the owner or operator 
has: 
(i) Begun, or caused to begin, as 
part of a continuous on-site 
construction program: 
(I") Any placement, assembly, or 
installation of facilities or 
equipment; or 
(ID Significant site preparation 
work including clearing, 
excavation, or removal of 
existing buildings, structures 
or facilities which is neces- 
sary for the placement, as- 
sembly, or installation of new 
source facilities or equip- 
ment; or 



(ii) Entered into a binding contractu- 
al obligation for the purchase of 
facilities or equipment which are 
intended to be used in its opera- 
tion within a reasonable time. 
Options to purchase or contracts 
which can be terminated cr 
modified without substantial 
loss, and contracts for feasibili- 
ty, engineering. and design 
studies do not constitute a con- 
tractual obligation under this 
definition. 

(20) "Noncontact Cooling Water" is water 
used for cooling which does nol come 
into direct contact wit** vt\' raw inale; 
rial, intermediate product, wg^ : ■ 
product, or finished product. 

(21) 'Non-discharge Permit" is a permit 
issued by the State pursuant to G.S. 
143-215. 1(d) for a waste which is not 
discharged directly to surface waters 
of the State or for a wastewater treat- 
ment works which does not discharge 
directly to surface waters of the State. 

(22) "Operator in Responsible Charge" is 
the operator designated to fulfill the 
requirements of G.S. 9QA-44. 

(23) "Pass Through" means a discharge 
which exits the POTTW into waters of 
the State in quantities or concentra- 
tions which, alone or with discharges 
from other sources, causes a viola- 
tion, including an increase in the 
magnitude or duration of a violation, 
of the POTW's NPDES permit or 
Non-discharge permit, or of an 
instream water quality standard. 

(24) "Permit Synopsis" refers to a 
document compiling information from 
the pretreatment permit application 
and industry inspection and providing 
the rationale for the pretreatment 
permit limits. 

(25) "Pollutant" includes any waste defined 
in OS, 143-213(18); dredged spoil; 
solid waste; incinerator residue; 
garbage; 
medical 



sewage sludge; munitions; 
wastes; chemical waste ; 



biological materials: radioaciive 
materials; heal; wrecked or di>Car Jed 
equipment; rock; sand: cellai dirt; 
municipal and agnculiur ai wasle:. and 
certain characteristics of wastewater, 
such as pH, temperature, TSS. 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



261 



PROPOSED RULES 



(26) 



(28) 



(29) 



(30) 



turbidity, color, BOD. COD, toxicity, 
and odor. 

"Pollutant of Concern" or "POC" is a 
pollutant identified as being of 
concern to the PCTTW for purposes of 
the pretreatment program; pollutants 
of concern may include but not be 
limited to conventional wastewater 



pollutants, 
ammonia: 



such 
any 



as BOD, 
of the 



TSS, or 
priority 



pollutants; and any pollutant that may 
be identified as a source of 
interference, pass through, whole 
effluent toxicity, or sludge 
contamination. 



(27) "POTW 



or Publicly Owned 
Treatment Works, means a treatment 
works as defined by Section 212 of 
the Federal Clean Water Act (CWA), 
which is owned by a State or local 
government entity. This definition 
includes any devices and systems used 
in tlie storage, treatment, recycling 
and reclamation of municipal sewage 
or industrial wastes of a liquid nature. 
It also includes sewers, pipes, and 
other conveyances only if they convey 
wastewater to a POTW treatment 
plant. The term also means the local 
government entity, or municipality, as 
defined in section 502(4) of tlie (TWA, 
which has jurisdiction over indirect 
discharges to and the discharges from 
such a treatment works. 
^ 'POTW Director" means the chief 
administrative officer of the publicly 
owned treatment works or his /her 
delegate. 

"Pretreatment" refers to tlie reduction 
of tlie amount of pollutants, the 
elimination of pollutants, or the 
alteration of the nature of pollutant 
properties in wastewater prior to or in 
lieu of discharging or otherwise 
introducing such pollutants into a 
POTW. The reduction or alteration 
can be obtained by physical, chemical, 
or biological processes, or process 
changes or other means, except as 
prohibited by 40 CFR Section 
403.6(d). 

"Pretreatment Standard" is any 
prohibited discharge standard, 
categorical standard, or local limit 
which applies to an industrial user. 



(34) 



(31) "Process Wastewater" means any 
water which, during manufacturing or 
processing, comes into direct contact 
with or results from the production or 
use of any raw material, intermediate 
product, finished product, by-product, 
or waste product. 

(32) "Removal Credits" are credits, 
available under certain conditions, that 
are applicable to categorical industrial 
users and are used to adjust 
categorical standards in such a way as 
to reflect POTW consistent removal of 
a particular pollutant. 

(33) "Sewer Use Ordinance" or "SUO" 
means the local government entity 
ordinance providing the legal 
authority for administering the 
pretreatment program. 
i9^ "Significant Industrial User" or 
"SIU" means a an industrial user 
facility which that discharges 
wastewater into a publicly owned 
treatment works and which that: 

upon the effective date of this Rule 
until January i^ 1996. discharges an 
average of 50.000 gallons or more 
per day of process wastewater to the 
POTW; effective January L 1996, 
that bes discharges an average of 
daily — process — V i 'Qstcv r 'ater Sew — ef 
greater than 50,000 25,000 gallons 
or more per day of p rocess 
wastewater to the POTW (excluding 
sanitary, noncontact cooling and 
boiler blowdown wastewaters) or; 
contributes more than 5 percent of 
the design flow of tlie POTW 
treatment plant or more than 5 
percent of tlie maximum allowable 

head works loading toy de s ign 

capacity — of the wastewater of the 
POTW treatment plant for any 



(A) 



(B) 



(C) 
(D) 



pollutant of concern which receiv e s 

the discharge , or; 

is required to meet a national 

categorical pretreatment standard, 

or; 

is^ regardless of Parts (A). (B). and 

(C) of this definition, otherwise 



determined by the control authority 
to have a reasonable f)otential te for 
adversely impact affecting the 
POTW's operation or for violating 
any pretreatment standard or 



262 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



requirement waatowator — treatment 
plant or POTW's receiving stream 
standard , or to limit the POTW^ 
sludge disposal options^ , or; 
(E) — hoa been included in the monitoring 
program — s ubmitted — m accordance 
with .0906 of this Section provided 
9«efe — ty — has aet — been — eliminated 
through — .090703) and (c) of this 
Section. 
(35) H^ " Reportable Significant 
Noncompliance" or "SNC" is the 
status of noncompliance of an 
industrial user when one or more of 
the following criteria are met: i s the 
criteria — which — shall — be used — fef 
s emiannual — noncompliance repwrts as 
outlined in ■09Q 8 (l3)( 4 )rf this Section 
and shall include: 
(A) Violations — of wastewater — discharge 
limits, (i) Chronic violations^ of 
wastewater discharge limits, defined 
here as those in which Sixty sixtv - 
six percent or more of the 
measurements taken during a six- 
month period exceed (by any 
magnitude) the s ame daily 
maximum limit er and the s ame 
average limit for the same pollutant 
parameter; this percentage is 
determined by dividing the total 
number of violations for the 
parameter by the number of 
compliance judgment points for the 
parameter ifl-a s ix month period. ^ 
IB) #) Technical Review Criteria (TRC) 
vioIations_,T defined here as those in 
which Thirty three thirty-three 
percent or more of the 
measurements for each pollutant 
parameter taken during a six-month 
period equal or exceed the product 
of the daily maximum limit or the 
average limit multiplied by the 
a pplicable are more than the TRC; 
time s — the — liinrt — (maximum — ©f 



avcmge) — m — a — six month penod. 
There — afe — twe — groups — ef — TRCs: 

pollutants BOD, TSS, fets, oil and 
grease^ TRC = — 1. 4 ; For all other 
pollutants, TRC = 1.2 for al] other 
pollutants (except pH); this 
percentage is determined by dividing 
the total number of TRC violations 



ICi 



ID) 



(E) 



IB 






36) 



for the parameter by the number of 
compliance judgment points for the 
parameter; 

fm)Any other violation-fs) of an a 
pretreatment effluent limit ( average 
ei^-daily maximum or longer-term 
average) that the Control Authonty 
believes determines has caused, 
alone or in combination with other 
discharges, interference or pass- 
through (including endangering the 
health of POTW personnel or the 
general public) ; or endangered the 
health — ©f — the — s ewerage — treatment 
plant personnel or the public 
ttv)Any discharge of a pollutant that 
has caused imminent endangermeni 
to human healthA^ welfare or to the 
environment or has resulted in the 
POTW's exercise of its emergency 
authority under Paragraph 
(f)(l)(vi)(B) of 40 CFR 403.8 to halt 
or prevent such a discharger; 
f&) Failure to meet, within 90 days 
after the schedule date, a Violations 
©f compliance schedule milestones 
contained in a pretreatment permit 
or enforcement order- for starting 
construction, completing 
construction, or attaining final 
compliance; — by — 90 day s — er — more 
after the schedule date. 
^Gj Failure to provide^ within 30 
days after the due date, required 
reports such as fef — compliance 

s chedule s , s elf monitoring data. 

baseline monitoring reports, 90-day 

compliance reports, afid periodic 

self-monitoring compliance reports^ 

and reports on compliance with 

compliance schedules; — within — 30 

day s from the due date. 

(©) Failure to accurately report 

noncomplianccr; 

fE) Any other violation or group of 

violations that the Control Authority 

con s ider s te b« significant 

determines will adversely affect the 
operation or implementation of the 
local pretreatment program . 
(4-4-) "Staff" means the staff of the 
Division of Environmental 
Management, Department of 
Environment, Health, and Natural 



NORTH CAROLINA REGISTER 



May 16, 1994 



263 



PROPOSED RULES 



Resources a-frd Community 

Development . 

(37) "Upset" is an exceptional incident in 
which there is unintentional and 
temporary noncompliance with 
categorical pretreatment standards 
because of factors beyond the 
reasonable control of the industrial 
user. An upset does not include 
noncompliance to the extent caused by 
operational error, improperly designed 
treatment facilities. inadequate 
treatment facilities, lack of preventive 
maintenance, or careless or improper 
operation. 

(38) "Waste reduction" means source 
reduction and environmentally sound 
recycling. 

(39) "Wastewater" means the liquid and 
water-carried industrial or domestic 
wastes from dwellings, commercial 
buildings, industrial facilities, mobile 
sources. treatment facilities and 
institutions. together with any 
groundwater, surface water, and storm 
water that may be present, whether 
treated or untreated, which are 
contributed into or permitted to enter 
the POTW. 

(40) "Waters of the State " are all streams, 
rivers, brooks, swamps, sounds, tidal 
estuaries. bays. creeks. lakes, 
waterways, reservoirs, and all other 
bodies or accumulations of water, 
surface or underground, natural or 
artificial, public or private, which are 
contained in. flow through, or border 
upon the State or any portion thereof 

Statutory Authority G.S. 143-215. 3(a)(l ). (14); 
150B-21.6. 

.0904 REQUIRED PRETREATMENT 
PROGRAMS 

(a) The Regulations covering regarding 
pretreatment program development by the POnTW 
promulgated by the Environmental Protection 
Agency and codified as 40 CFR Part 403.8(a) 
through 40 CFR Part 403.8(e) are hereby 
adopted mcorporated by reference including as 
amended through March — h — 10 8 7 or any later 
adopted subsequent amendments ©f and editions 
of this document as is allowed by G.S. 150B 
1 4 (e) . This material is available for inspection 
at the Department of Environment, Health, and 



Natural Resources, Division of Environmental 
Management. Pretreatment Offices. Archdale 
Building. P a Box 29535. 512 N, Salisbury 
St., Raleigh, NC 27626-0535. Copies may be 
obtained from the US Government Printing 
Office Bookstore. P Q Box 56445. Atlanta. 
Georgia 30343. phone number (404) 331-6947 
at a cost of twenty-six dollars ($26.00). 

(b) The Division may allow a POTW having a 
combined design flow less than 2 million gallons 
per day and having fewer than four Significant 
Industrial Users to develop and implement a 
Modified Pretreatment Program that 
encompasses a portion of the requirements in 
Rules .0905 and .0906 of thjs Section, as 
designated by the Director. A POTW having a 
combined design flow less than 2 million gallons 
per day and having fewer than four Significant 
Industrial Users may request that the Director 
consider the POTW for Modified Pretreatment 
Program status prior to January J^ 1996 only if 
the POTW demonstrates that all SIU's meeting 
the definition of SIU that is effective January L, 
1996 have been identified and permitted, if 
necessary. In making the decision to allow 
Modified Pretreatment Program development and 
implementation, the Director may consider 
factors including but not limited to percent 
industrial flow, industrial waste characteristics, 
compliance status of the facility, and the 
potential for industrial growth. 

Statutory Authority G.S 143-215. 1(a), (b); 143- 
215.3(a)(14); 150B-21.6. 

.0905 POTW PRETREATMENT 

PROGRAM REQUIREMENTS 

Except where specified differently in this 
Section, the The POTW pretreatment program 
requirements promulgated by the Environmental 
Protection Agency and codified as 40 CFR Part 
403.8(f) are hereby adopted incorporated by 
reference including as amended through March 
4-; — 1987 — ef any tatef — adopted — subsequent 
amendments ef and editions of thi s document as 
is allowed by G.S. 150B 1 4 (c) . This material is 
available for inspection at the Department of 
Environment. Health, and Natural Resources, 
Division of Environmental Management. 



Pretreatment Offices. Archdale Building. R 0. 
Box 29535. 512 R Salisbury St.. Raleigh. NC 
27626-0535. Copies may be obtained from the 
US Government Printing Office Bookstore. R 
a Box 56445. Atlante. Georgia 30343. phone 
number (404) 331-6947 at a cost of twenty-six 



264 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



lollars ($26.00) ■ In general, the implementation 
if a pretreatment program involves the updating 
if the Sewer Use Ordinance (SUO); on-going 
ndustrial waste survey ac tivities; updating of the 
iead works Analysis (HWA), or technical basis 
or local limits; implementation of the Long 
erm Monitoring Plan (LTMP); on-going 
mplementation of compliance activities, 
icluding sampling and inspection of significant 
[idustrial users; implementation of the 
Enforcement Response Plan (ERP), and periodic 
;porting to the Division on pretreatment 
rogram activities. 

tatutory Authority G.S. 1 43-21 5.1 (a). (b): 143- 
15.3(a}(l).(14};' 150B-21.6; 153A-274; 153A- 
75; 160A-311; 160A-312. 

)906 SUBMISSION FOR APPROVAL 

(a) Except where in conflict with any part of 
lis Section, the The regulations covering 
igarding the contents of pretreatment programs 
ibmitted for approval and the contents of a 
:quest to revise national categorical 
retreatment standards, promulgated by the 
nvironmental Protection Agency and codified as 
CFR Part 403.9 are hereby a dopt e d 
icorpo rated by reference including as amended 



rough March — h — 1 987 or any later adopted 
ibsequent amendments ef and editions of this 



)eumcnt — as — is — allowed — fey — G.S. I50B 1 4 (c) 
his material is available for inspection at the 
epartment of Environment, Health, and Natural 
esources. Division of Environmental 



anagement, Pretreatment Offices, Archdale 



gilding, R Q Box 29535, 512 N, Salisbury 



Raleigh, NC 27626-0535. Copies may be 
)tained from the US Government Printing 



ffice Bookstore, R O. Box 56445, Atlanta, 
eorgia 30343, phone number (404) 331-6947 



a cost of twenty-six dollars ($26. (X)). In 
neral, pretreatment program development 
bmissions include a Sewer Use Ordinance 



UO) providing the legal authority for 



iplementing the pretreatment program, an 



omey's statement, a description of the POTW 
ganization which will administer the 
etreatment program, and a description of 



nding levels and full- and part-time staffing 



ailable to implement the pretreatment program 



addition to those items listed in Paragraph (b) 



this Rule. 

"b) In addition to the contents of a POTW 

etreatment program submission from described 



in ■:0906- Paragraph (a) of this Rule, the program 
submission mu s t shall contain: 

(1) an Industrial Waste Survey (IWS), or 
industrial user survey, as required by 
40 CFR 403.8 (f) (2) (i-iii) and 15A 
NCAC 2H .0905, including 
identification of all industrial users 
and the character and amount of 
pollutants contributed to the POTW 
by these industrial users and 
identification of those industrial users 
meeting the definition of Significant 
Industrial User ; 

f3-) technical information (including 

s p>cc i fio — data — required — te s pecify 

violations e-f th-e discharge 

prohibition s in 4 CFR 4 03.5(a) and 
(t^) — and — l^A — N€AG — 2« — r0909) 
necessary — te — develop — as industrial 
waste ordinance — ef — other — means — ef 
e nforcing pretreatment s tandards; 

(2) a Long Term Monitoring Plan 
(LTMP) to provide POl^W site- 
specific data for the HWA and 
subsequent technical evaluations of 
local limits to satisfy the requirements 
of 40 CFR 122.21(i); 

(3) a Headworks Analysis (HWA) and 
supporting documentation, including 
POTW site-specific and relevant 
literature data, upon which to base 
industnal user-specific effluent lim.its 
and other local limits s pecific POTW 

cffiuont limitations for prohibited 

pollutants (as defined m 40 CFR 
403.5(a) and (b) and 15A NCAC 2H 
.0909); contributed to the POTW by 
indu s trial u s ers and the technical ba s i s 
for these limitations. 

(4) the design of a compliance monitoring 
program^ including inspection, 
sampling. equipment, and other 
compliance procedures, which will 
implement the requirements of 40 
CFR 403.8(f) and 403.12, and 15A 
NCAC 2H .0905 and .0908; 

(5) draft industrial user pretreatment 
permits for Significant Industnal 
Users and supporting documentation 
outlined in .0917 of this Section a li s t 
of monitoring equipment required by 

the POTW te — implement — the 

pretreatment program aftd a 

description of municipal — facilitie s to 



NORTH CAROLINA REGISTER 



May 16, 1994 



265 



PROPOSED RULES 



(6) 



W- 



fee — constructed — fef — monitoring — and 
analysis of industrial v i tifltc ; 
procedures for approving the 
construction of pretreatment facilities 
by industrial users and for permitting 
industrial users for construction, 
operation and discharge as required by 
NCOS G.S. 143-215.1; procedures 
for approving construction shall 
include issuance of authorization to 
construct, as appropriate; -? 
having a professional 



(7) 



(8) 



19} 



engineer, 
licensed to procticc in this state, on 
the POTSV — staff (or retained as a 

consultant te review unusual 

situations or de s igns and/or: 
fB) — having such s ituations referred to the 
Division for review and approval; 
an enforcement Enforcement Response 
Plan (ERP) as required by 40 CFR 
403.8(f)(5) management — s trategy for 
identifying violations of and enforcing 
specific local limits as required by and 
specified in 40 CFR 403.5 and 403.6 
and 15A NCAC 2H Rules . 0909 and 
.0910 of this Section; aed 
a description of data management 
procedures for compiling and 
managing compliance, LTMP, and 
any other pretreatment -related 
monitoring data; and 
f^ a request for pretreatment program 
approval as required by 40 CFR 403.9 
and 15A NCAC 2H Rule .0900 of this 
Section , 
(c) The POTW must submit three bound 
copies of the program containing the information 
in .0906 Paragraphs (a) and (b) of this Rule to 
the Division of Environmental Management. 

Statutory Authority G.S. 143-215. l(a),(h); 143- 
215.3(a)(1). (14); 150B-21.6. 

.0907 PROGRAM APPROVAL 

PROCEDURES: REVISION 
AND WITHDRAWAL 

(a) Procedures for approval of a POTW 
pretreatment program and for removal credit 
authorization are as follows: 

(1) Except where in conflict with any part 
of this Section, the ^fte approval 
procedures for POTW pretreatment 
programs and applications for removal 
credit authorization promulgated by 
the Environmental Protection Agency 



and codified as 40 CFR Part 403.11 
are hereby adopted incorporated by 
reference including as amended 
through March 1 , — 1987 or any iater 
adopted subsequent amendments ef 
and editions of this document as is 



allowed by G.S.150B 1 4 (c) . This 
material is available for inspection at 
the Department of Environment- 
Health, and Natural Resources. 
Division of Environmental 



Management. Pretreatment Offices. 



Archdale Building. R Q Box 29535, 
512 N^ Salisbury St.. Raleigh. NC 
27626-0535. Copies may be obtained 



from the US Government Printing 



Office Bookstore. R Q Box 56445. 
Atlanta. Georgia 30343. phone 



(2) 



number (404) 331-6947 at a cost of 
twenty-six dollars ($26.00). 
Upon program approval, a POTW is 
delegated, subject to the provisions of 
Rules .0916 and .0917 of this Section , 
the authority to issue the construction, 
operation and discharge permits 
required by G.S. 143-215. 1(a) for 
those Significant Industrial Users 
discharging or proposing to dischaife 
to the POTW. 
(b) Either the Division or the POTW may 
mitiate program revisions. The POTW must 



submit a request to the Division for shall keep 



the — division — feHy — informed — of any — proposed 
a pproval of modifications to its approved 
pretreatment program, including, but not limited 



to its legal authority, or Sewer Use Ordinance 



(SUO), Headworks Analysis (HWA), Long Term 



Monitoring Plan (LTMP), Enforcement Response 



(1) 



Plan, summary of Industrial Waste Survey, its 
Division-approved forms, and procedures afld 
prioritie s. Revisions to an approved 

pretreatment program shall be accomplished as 
follows: 

the POTW shall submit a modified 
program description, an attorney's 
statement if the legal authority of the 
program is being modified, and other 
documents as the Director determines 
to be necessary under the 
circumstances; 

whenever the Director determines that 
the proposed program modifications 
are substantial, the Division shall 
issue public notice and provide an 
opfKirtunity for public comment as 



(2) 



266 



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PROPOSED RULES 



described in 15A NCAC 2H .0109 
and .0110; public notices issued by 
the Control Authority are deemed 
sufficient notice: 

(3) the Director or his /her delegate shall 
approve or disapprove program 
revisions based on the requirements of 
this Section, NCGS G.S. 143-215.1, 
NCOS G.S. 143-215.3 and the Water 
Quality Memorandum ef of Agree- 
ment between the Division and the 
EPA; 

(4) a pretreatment program revision shall 
become effective upon written approv- 
al of the Director. 

(c) Revision to the POTW's Significant Indus- 
trial Users (SILT) list shall be made using the 
procedure outlined in .0907 Paragraph (b) of this 
Rule. The SIU list may be revised at any time, 
provided sufficient documentation as required by 



the Division is su pplied and supports such a 
determination, aad Requests for deletion of SIUs 



from the SIU list shall be accompanied by i»- 



eludc documentation which shows: 

(1) the industrial user does not fit meet 
the criteria outlined in Subparagraph 
T0903(b)(934) (A) through (D) of Rule 
.0903 of this Section: aad or 

(2) the industrial user meets the criteria 
outlined in Parts (b)(34')(A) or (B) of 
Rule .0903 of this Section and the 
industrial — user no — longer di s charges 
nondomcfltic — v i pstcvmtcr te — POTW, 

©n 



m 



<4)- 



the industrial user dischargers waste 
water with pollutant level s which are 
con s i s tently les s than or e qual to the 
levels aasooiatofl with domestic sew 
age, or; 
-tb« indu s trial »sef= di 



i s cnargc s 

wofltowatcr — which is consistently 

below pretreatment standards and the 
wastewater treatment plant receiving 
the discharge has a significant avail- 
able reserve capacity for flow and all 
pollutants reasonably expected to be in 
the industrial user's discharge, 
(d) The Director may withdraw pretreatment 
)rogram approval when a POTW no longer 
implies with requirements of this Section and 
he POTW foils to take corrective action. The 
bllowing procedures apply when the Director 
litootof determines that program withdrawal may 
>e needed: 



(1) 



(2) 



(3) 



(4) 



ie) 



The Director shall give the POTW 
180 days notice of the program with- 
drawal; 

the POTW shall submit within 60 
days of such notice a plan for the 
orderly transfer of all relevant pro- 
gram information not in the posses- 
sion of the Division (such as permit 
files, compliance files, reports and 
permit applications) which is neces- 
sary for the Division to administer the 
pretreatment program; 
within 60 days of the receipt of the 
POTW transfer plan the Director shall 
evaluate the POTW plan and shall 
identify any additional information 
needed by the Division for program 
administration or and/or identify any 
other deficiencies in the plan; 
at least 30 days before the program 
withdrawal the Director shall publish 
public notice of the program transfer 
and shall mail notice to all pretreat- 
ment permit holders of the POTW. 
Applications for removal credit authoriza- 
tion shall be made in accordance with procedures 
established by the Division. A pproval shall 
become effective upon written a pproval of the 
Director. 

(f) A pretreatment program is considered 
inactive when industrial users defined as Signifi- 
cant Industrial Users no longer discharge to the 
POTW. based on modifications of the pretreat- 
ment program approved by the Division. When 
required by the Division to return to active 
status, a POTW may be required to update any 
or all of the requirements listed in Rule .0906 of 
this Section. 

(g) The Division may require that representa- 
tives of Modified Pretreatment Programs devel- 
oped under Paragraph (h) of Rule .0904 of this 
Section meet with Division personnel periodical- 
ly to discuss implementation of and revisions to 
their Modified Pretreatment Program. 

Statutory Authority G.S. 143-21 5 (a); 143- 
21 5.1 (a), (c); 143-215. 3(a)(3), (14). (e); 150B- 
21.6. 

.0908 REPORTING AND RECORD 
KEEPING REQUIREMENTS 
FOR POTWS AND INDUSTRIAL 
USERS 

(a) Except where in conflict with any part of 
this Section, the The regulations covering 



h4 



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May 16, 1994 



267 



PROPOSED RULES 



regarding the reporting requirements for POTWs 
and industrial users promulgated by the Environ- 
mental Protection Agency and codified as 40 
CFR Part 403.12 are hereby adopted incorporat- 
ed by reference including as amended through 
March 1 , 1 987 or any later adopted subsequent 
amendments er and editions of thi s document as 
i s allowed by G.S. 150B 1 4 (c) . This material is 
available for inspection at the Department of 
Environment. Health, and Natural Resources, 
Division of Environmental Management. Pre- 
treatment Offices. Archdale Building. P. O. Box 
29535. 512 N^ Salisbury St.. Raleigh. NC 
27626-0535. Copies may be obtained from the 
L'S Government Printing Office Bookstore. R 
O Box 56445. Atlanta. Georgia 30343. phone 
number (404) 331-6947 at a cost of twenty-six 
dollars ($26.00). 

(b) POTWs with active approved pretreatment 
programs shall submit twice once per year a 
pretreatment report describing its pretreatment 
activities over the previous si* \2 months. Two 
copies of each pretreatment report shall be sub- 
mitted to the Division according to one of the 
following schedules; a report shall be submitted 
to the Division by August September 1 of each 
year describing pretreatment activities for two 
six-month periods. January 1 through June 30 of 
that year and July 1 to December 31 of the 
previous year x; and or a Hke report shall be 
submitted by February March 1 of each year for 
activities conducted from for two six-month 
periods. January 1 through June 30 and July 1 
through December 31 of the previous year. The 
POTW shall be notified by the Division as to 
which schedule to follow. TTi es e TTiis annual 
report reports shall contain the following infor- 
mation in accordance with forms and guidance 
specified by the Division : 

(1) a narrative summary of actions taken 
by the permittee to ensure compliance 
with pretreatment requirements; 

iOr) Q list of any substantive changes to be 

made in the approved program ; 

(2) (3)compliancc — status a pretreatment 
program summary on forms or jn a 
format approved by the Division of all 
Significant Industrial Users ; 

(3) f4) a list of all tho se Significant Indus- 
trial Users including the permit status; 
compliance status; and, if in noncom- 
pliance with pretreatment require- 
ments, the nature of the violations, 
and actions taken or proposed to 



14} 



ID 



correct the violations; on forms or in 
a format approved by the Division; 
an allocation table listin g permit infor- 
mation for all Significant Industrial 
Users, including but not limited to 
permit limits, permit effective and 
expiration dates, and a comparison of 
total permitted loads to the Division 
approved maximum allowable load- 
ings of the POTW. on forms or in a 
format approved by the Division; 
other information which in the opinion 
of the Director is needed to determine 



compliance with the implementation of 
the pretreatment program, including, 
but not limited to. Significant Industri- 
al User compliance schedules, public 
notice of Significant Industrial Users 
in significant noncompliance, a sum- 



mary of Significant Industrial User 
effluent monitoring data as described 
in Paragraph (f) of this Rule, and 
Long Term Monitoring Plan data on 
forms or in a format approved by the 
Division; sampling — aftd — analytical 



16) 



re s ults recorded on forms approved by 
the Director. 

a description of aU POTW and Signif- 
icant Industrial User waste reduction 



activities. 



(c) Inactive pretreatment programs are not 
required to submit the report described in Para- 
graph (b) of this Rule. Inactive approved pre- 
treatment programs shall notify the Division 
when a Significant Industrial User proposes to 
discharge to the POTW. 

(e d) Samples shall be collected and analyzed 
by the POTW stafl" independent of the industry 
for each Significant Industrial User^ 

(1) for all permit-limited parameters, 
except those listed in Paragraph (d)(2) 
of this Rule, a minimum of twice each 
year, once during each six-month 9« 
month — reporting period in Paragraph 
(b) of this Rule^T 

(2) for organic compounds limited m the 
Significant Industrial User permits, a 
minimum of once each year. If the 
POTW elects to sample and analyze in 
lieu of the industry, the POTW shall 
collect and analyze at a minimum 
samples as described in this Rule and, 
if applicable, in accordance with 
categorical standards. Independent 
monitoring of the industry by the 



268 



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May 16, 1994 



PROPOSED RULES 



POTW is not re quired for pollutants 

which are limited by a categorical 

standard for which specific 

certification or other alternative 

procedures apply. 

(d e) For the purpose of indicating the nature 

and concentration of the industries^ discharges in 

the baseline reports, deadline compliance reports 

and periodic compliance reports required in 

Paragraph (a) of this Rule the following shall 

apply: 

(1) analyses shall be completed on all 
pollutants which are limited by the 
categorical standard unless the 
categorical standard contains specific 
certification or other alternative 
procedures for specific pollutants; 

(2) compliance with a monthly average 
limitation shall be shown every six 
months by the analysis of a sufficient 
amount number of samples to be 
representative of the industry's 
monthly discharg e; this shall include a 
minimum of four samples . 

(e f) POTWs and Industrial Users shall retain 
for a minimum of three years records of 
monitoring activities and results along with 
support information including annual 
pretreatment reports, general records, water 
quality records, and records of industrial impact 
on the POTW. Support information for 
pretreatment permits shall be retained for five 
years. A summary of aU Significant Industrial 
User effluent monitoring data reported to the 
POTW by the Industrial User or obtained by the 
POTW shall be maintained on Division-approved 
forms or in a format a pproved by the Division 
for review by the Division. 

(g) In lieu of submitting annual reports. 
Modified Pretreatment Programs developed 
under Paragraph {b} of Rule .0904 of this 
Section may be required to meet with Division 
personnel periodically to discuss enforcement of 
pretreatment requirements and other pretreatment 
implementation issues. 

Statutory Authority G.S. 143-215.1 (a), (b); 143- 
215.2; 143-215. 3(a)(2). (14); 143-215. 6A(a)(l); 
143-215.63 through 143-215.67; 143-215.69; 
150B-21.6. 

.0909 NATIONAL PRETREATMENT 
STANDARDS: PROfflBITED 
DISCHARGES 



The regulations regarding covering national 
prohibitive prohibited pretreatment standards and 
local limits development and enforcement 
promulgated by the Environmental Protection 
Agency and codified as 40 CFR Part 403.5 are 
hereby adopted incorporated by reference 
including as amended through March 1, 19 8 7 or 
any later adopted subsequent amendments ef and 
editions of thi s — document — as — is — allowed — by 
G .S. 1 SOB 1 4 (e) . This material is available for 
inspection at the Department of Environment, 
Health, and Natural Resources. Division of 
Environmental Management, Pretreatment 
Offices. Archdale Building, R Q Box 29535, 
512 N. Salisbury St.. Raleigh. NC 27626-0535. 
Copies may be obtained from the US 
Government Printing Office Bookstore. P Q 
Box 56445, Atlanta, Georgia 30343, phone 
number (404) 331-6947 at a cost of twenty-six 
dollars ($26.00). 

Statutory Authority G.S. 143-215. 1(a)(7); 143- 
215.1(b); 143-215. 3(a)(1), (14); 150B-21. 6. 

.0910 NATIONAL PRETREATMENT 
STANDARDS: CATEGORICAL 
STANDARDS 

The regulations regarding covering national 
categorical pretreatment standards promulgated 
by the Environmental Protection Agency and 
codified as 40 CFR Part 403.6 are hereby 
adopted incorporated by reference including as 
amended through March — h — 19 8 7 or any later 
adopted subsequent amendments ©f and editions 
of this document as is allowed by G.S. 150B 
1 4 (c) . This material is available for inspection 
at the Department of Environment, Health, and 
Natural Resources. Division of Environmental 
Management. Pretreatment Offices, Archdale 
Building. P a Box 29535, 512 N, Salisbury 
St., Raleigh, NC 27626-0535. Copies may be 
obtained from the US Government Printing 
Oflfice Bookstore. P Q Box 56445. Atlanta. 
Georgia 30343. phone number (404) 331-6947 
at a cost of twenty-six dollars ($26.00). 

Statutory Authority G.S. 143-215. 1(a)(7); 143- 
215.1(b); 143-215. 3(a)(14); 150B-21.6. 

.0912 ADJUSTMENTS FOR 

FUNDAMENTALLY DIFFERENT 
FACTORS 

The regulations regarding covering variances 
from national categorical pretreatment standards 
for fundamentally diff'erent factors promulgated 



9:4 



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May 16, 1994 



269 



PROPOSED RULES 



by the Environmental Protection Agency and 
codified as 40 CFR 403.13 are hereby adopted 
incorporated by reference including as amended 
through — March — h — 1Q87 or any later adopted 
subsequent amendments ef and editions of thi s 
document — as — is — allowed — by — G.S.150B 1 4 (c) 
This material is available for inspection at the 
Department of Environment. Health, and Natural 
Resources. Division of Environmental 
Management. Pretreatment Offices. Archdale 
Building. P Q Box 29535. 512 N, Salisbury 
St.. Raleigh. NC 27626-0535. Copies may be 
obtained from the US Government Printing 
Office Bookstore. P Q Box 56445. Atlanta. 
Georgia 30343. phone number (404) 331-6947 
at a cost of twenty-six dollars ($26.00). 

Statutory Authority G.S. 143-21 5(a); 143- 
21 5.1 (a), (h); 1 43-21 5. 3 (ah (1 4), (e); 150B-21.6. 

.0914 UPSET PROVISION 

TTie upset provision promulgated by the 
Environmental Protection Agency and codified as 
40 CFR Part 403.16 is hereby adopted 
incorporated by reference including as amended 
through — March — h — 19 8 7 or any later adopted 
subsequent amendments er and editions of this 
document — as — is — allowed — h^ — G.S. 150B 1 4 (c) . 
This material is available for inspection at the 
Department of Environment. Health, and Natural 
Resources. Division of Environmental 
Management. Pretreatment Offices. Archdale 
Building. P Q Box 29535. 512 N, Salisbury 
St.. Raleigh. NC 27626-0535. Copies may be 
obtained from the US Government Pnnting 
Office Bookstore. P O. Box 56445. Atlanta. 
Georgia 30343. phone number (404) 331-6947 
at a cost of twenry-six dollars ($26.00). 

Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215.3(a)(14); 150B-2L6. 

.0915 NET/GROSS CALCULATION 

The net/gross calculation provisions 
promulgated by the Environmental Protection 
Agency and codified as 40 CFR Part 403.15 are 
hereby adopted incorporated by reference 
including as amended through March 1. 1987 or 
any later adopted subsequent amendments er and 
editions ef — this — document — as — is — allowed — by 
G.S. 150B 1 4 (c) . This material is available for 
inspection at the Department of Environment. 
Health, and Natural Resources. Division of 
Environmental Management. Pretreatment 
Offices. Archdale Building. P Q Box 29535. 



512 N, Salisbury St.. Raleigh. NC 27626-0535. 
Copies may be obtained from the US 
Government Printing Office Bookstore, R Q 
Box 56445, Atlanta, Georgia 30343, phone 



number (404) 331-6947 at a cost of twenty-six 
dollars ($26.00). 

Statutory Authority' G.S 143-215. 3(a)(1); 143- 
215.3(a)(14); 150B-21.6. 

,0916 PERMITS 

(a) All Significant Industrial Users who 
discharge waste into a POTW or who construct 
or operate a pretreatment fecility must obtain a 
permit from the Control Authority. 

(Id) Where the Division is the Control 
Authority permits shall be issued in accordance 
with Section .0100 of this Subchapter. 

(c) Where the POTW is the Control Authority, 
Significant Industrial User permits shall be 
issued as follows: 

(1) Application: any Significant Industrial 
User required to obtain a permit in 
.0916(a) above shall be required to 
complete, sign and submit to the 
Control Authority a permit 
application. Application fees and 
procedures may be prescribed by the 
Control Authority. All pretreatment 
permit applications shall include as a 
minimum: 

(A) name of industry; 

(B) address of industry; 

(C) standard industrial classification 
(SIC) code(s) or expected 
classification and industry category; 

(D) wastewater flow; 

(E) types and concentrations (or mass) 
of pollutants contained in the 
discharge; 

(F) major products manufactured or 
services supplied; 

(G) description of existing on-site 
pretreatment facilities and practices; 

(H) locations of discharge points; 

(I) raw materials used or stored at the 

site; 
(J) flow diagram or sewer map for the 

industry; 
(K) number of employees; 
(L) operation and production schedulesT; 
(M) description of waste reduction 

activities being utilized. 

(2) Renewals: Applications for 
pretreatment permit renewals shall be 



270 



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May 16, 1994 



PROPOSED RULES 



accomplished by filing an appropriate 
application form as listed in .0916 
(c)(1) prior to permit expiration. The 
number of days prior to expiration by 
which the application must be filed 
shall be established by the Control 
Authority. 

(3) Review and Evaluation: 

(A) The POTW Director is authorized to 
accept applications for the 
Commission and shall refer all 
applications to the POTW staff" for 
review and evaluation. 

(B) The POTW Director shall 
acknowledge receipt of a complete 
application, or if not complete, shall 
return the application to the 
applicant with a statement of what 
additional information is required. 

(C) The POTW staff shall include as 
part of the permit record 
documentation of an on site 
inspection of the industrial facility 
and any existing wastewater 
pretreatment system. Such 
inspection shall have been conducted 
a maximum of 12 months prior to 
the issue date of the pretreatment 
permit. 

(D) The POTW staff shall conduct an 
evaluation and make a tentative 
determination to issue or deny the 
permit. If the POTW stars 
tentative determination is to issue the 
permit, it shall make the following 
additional determinations in writing 
and transmit them to the permittee ' 

(i) proposed effluent limitations for 
those pollutants proposed to be 
limited; 

(ii) a proposed schedule of 
compliance, including interim 
dates and requirements, for 
meeting the proposed effluent 
limitations; and 

(iii) a brief description of any other 

proposed special conditions 

which will have significant 

impact upon the discharge 

described in the application. 

The POTW staff shall organize the 

determinations made into a 

pretreatment permit. 

(4) Permit synopsis and allocation table : 
A brief synopsis of the application and 



permit shall be prepared by the 
POTW staff" for all Significant 
Industrial User permits. This 

synopsis shall be maintained in the 
POTW files in accordance with Rule 
.0908(f) of this Section. The synopsis 
and allocation table shall be sent to 
the Division along with the 
pretreatment permit jf required in 
Rule .0917 of this Section . An 
allocation table listing permit 
information for all Significant 
Industrial users, including but not 
limited to permit limits, permit 
effective and expiration dates, and a 
comparison of total permitted loads 
with Division a pproved maximum 
allowable loadings of the POTW, 
shall be prepared on forms or in a 
format approved by the Division and 
updated as permits are issued, 
modified, or renewed. TTie contents of 
the synopsis shall include at least the 
following information: 

(A) a copy of the completed industrial 
user a pplication or a quantitative 
description of the discharge 
described in the application which 
includes at least the following: 

(i) the rate or frequency of the 
proposed discharge; if the 
discharge is continuous, the 
average daily flow; 

(ii) the average daily discharge in 
pounds per day of any pollutants 
which are present in significant 
quantities or which are subject to 
limitations or prohibition 

(B) the basiSi or rationale, for the 
pretreatment limitations including 
the documentation of any 
calculations used in applying 
categorical pretreatment standardsTj 
and 

(C) a copy of the record of the 
inspection of the industrial user 
required in Part (c)(3)(C) of this 
Rule. 

(5) Hearings: 

(A) Adjudicatory Hearings. An 

applicant whose permit is denied, 
terminated, or is granted subject to 
conditions he /she deems 
unacceptable, shall have the right to 
an adjudicatory hearing before the 



9:4 



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May 16, 1994 



271 



PROPOSED RULES 



POTW Director or a other hearing 

officer appointed by the POTW 

Director upon making written 

demand, identifying the specific 

issues to be oontcndcd contest ed, to 

the POTW Director within 30 days 

following notice of the final decision 

to deny or grant the permit. Unless 

such written demand is made, the 

decision on the application shall be 

final and binding^^ subject to the 

provisions of Rule .0917 of this 

Section, and further a ppeal is 

barred . For modified permits, only 

those parts of the permit being 

modified may be adjudicated. The 

POTW Director or other heanng 

officer, as appropriate, shall make a 

decision on the contested permit 

within the time period specified in 

the Control Authority's Sewer Use 

Ordinance. The POTW Director 

shall transmit a copy of the hearing 

officer's decision to the petitioner by 

registered or certified mail. If no 

further administrative appeal is 

provided by the governing body of 

the Control Authority under Part 

(c)(5)(B) of this Rule then the 

decision is a final decision for the 

purposes of seeking judicial review. 

An Official Record of the 

adjudicatory hearing must be 

prepared as described in Part 

(c)(5)(C) of this Rule. 

(i) New Permits. Upon a ppeal. 

including judicial review in the 

General Courts of Justice, of the 

terms or conditions of a newly 

issued permit, the terms and 

conditions of the entire permit 

are stayed and the permit is not 

in effect until either the 

conclusion of judicial review or 

until the parties reach a mutual 

resolution. 

(li) Renewed or Modified Permits. 



Upon appeal, including judicial 
review in the General Courts of 
of the terms 
of a renewed 



Justice. 



or 
or 



conditions _ _ 

modified permit, the terms and 
conditions of the existing permit 
remain in effect until either the 
conclusion of judicial review or 



until the parties reach a mutual 
resolution. 
(iii) Terminated Permits. Upon 



(B) 



(C) 



a ppeal, including judicial review 



in the General Courts of Justice. 
of a terminated permit, no 
permit is in effect until either the 
conclusion of judicial review or 
until the parties reach a mutual 
resolution- 
Optional Appeal Hearings. If so 
provided by the governing body of 
the Control Authority. Afly any 
decision of a hearing officer or 
POTW Director made as a result of 
an adjudicatory hearing held under 
Part -:Qi^i€(c)(5){A) of this Rule may 
be appealed by any party , to the 
governing body of the Control 
Authority or other unbiased entity 
designated by the governing body of 
the Control Authority upon filing a 
written demand within ten days of 
receipt of notice of the decision. 
Failure to make written demand 



within the time specified herein shall 
bar further appeal. The governing 
body of the Control Authority or 
other unbiased entity. as 
appropriate, shall make a final 
decision on the appeal within the 
time period specified in the Control 
Authority's Sewer Use Ordinance. 
The governing body of the Control 
Authority or its designee shall 
transmit a written copy of its 
decision by registered or certified 
mail to the petitioner. This decision 
is a final decision for the purposes 
of seeking judicial review. An 
Official Record of the hearing must 
be prepared as described in Part 
(c)(5)(C) of this Rule- 
Hearings held under this Subdivi s ion 
shall be conducted using proecdur e a 
prescribed by the Control Authority. 
Official Record. When a final 
decision for the purposes of judicial 
review is issued under Subparagraph 
(c)(5) of this Rule, the hearing 
officer shall p repare an official 



record of the case that includes: 
ill Ail notices, motions, and other 
like pleadings; 



272 



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PROPOSED RULES 



Oil 



A copy of all documentary 
evidence introduced; 
A certified transcript of all 
testimony taken, if testimony is 
transcribed. If testimony is taken 
and not transcribed, then a 
of 



narrative summary 



any 



testimony taken: 
(iv) A copy of the final decision of 

the hearing officer. 
(D) fE) Judicial Review. Any person 
against whom a final decision of the 
hearing officer or POTW Director is 
entered, pursuant to the hearing(s) 
conducted under Subparagraph (c)(5) 
of this Rule, may seek judicial 
review of the decision, by filing a 
written petition within 30 days after 
receipt of notice by registered or 
certified mail of the final decision, 
but not thereafter, with the Superior 
Court of the a ppropriate county 
along with a copy to the Control 
Authority. Within 30 days after 
receipt of the copy of the petition of 
judicial review, the final decision 
maker shall transmit to the 
reviewing court the original or a 
certified copy of the official record. 
(6) Final Action on Permit Applications: 

(A) The POTW Director shall take final 
action on all applications by either 
issuing a pretreatment permit or by 
denying the discharge not later than 
90 days following the receipt of a 
complete application. If, followmg 
the 30 day period required by .0916 
Part (c)(5)(A) of this Rule and Rule 
.0917(fec) of this Section Regulation , 
no written demand for hearing, 
objection^ or request for more 
information under Rule .0917(f)(2) 
of this Section has been made^ the 
permit shall become final and 
binding. 

(B) The POTW Director is authorized 
to: 

(i) issue a permit containing such 
conditions as are necessary to 
effectuate the purposes of G.S. 
143-215.1; 

(ii) issue a permit containing time 
schedules for achieving 
compliance with applicable 
pretreatment standards and 



(iii) 



(iv) 



ivi) 



(C) 



(D) 



(7) 



(A) 



(B) 



limitations and other legally 
applicable requirements; 
modify or revoke any permit 
pursuant to .0916 
Subparagraph (c) (7) of this Rule ; 
deny a permit applicationT^ 
issue permits to industrial users 
not identified as Significant 
Industrial Users using 
procedures prescribed by the 
Control Authority, 
require Significant Industrial 
Users to develop a waste 
reduction plan and implement 
waste reduction techniques and 
technologies. 
Permits shall be issued or renewed 
for a period of time deemed 
reasonable by the POTW Director 
but in no case shall the penod 
exceed five years. 

The POTW Director shall notify an 
applicant by certified or registered 
mail of the denial of his /her permit 
application. Notifications of denial 
shall specify the reasons therefore 
and the proposed changes which in 
the opinion of the POTW Director 
will be required 
permit. 
Modification and 
Permits: 
Any permit issued 
Rule Regulation 
revocation or modification in whole 
or part for good cause as outlined in 
the Control Authority's sewer use 
ordinance regulations . 
Modifications of permits shall be 
subject to the same procedural 
requirements as the issuance of 
permits except as follows: 

changes in the ownership of the 
discharge when no other change 
in the permit is indicated; 
a single modification of any 
compliance schedule not in 
excess of four months; 
modification of compliance 
schedules (construction 
schedules) in permits for new 
sources where the new source 
will not begin to discharge until 
control facilities are operational^ 



to obtain the 



Revocation of 



pursuant to 
is subject 



this 
to 



(i) 



(ii) 



(iii) 



9:4 



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May 16, 1994 



273 



PROPOSED RULES 



(i\) modifications of the monitoring 
requirements in the permit. 
(C) Permit effective dates and modifica- 
tion dates shall not be retroactive. 

Statutory Authority G.S. 143-21 5 (a); 143- 
215.1(a)Jc): 143-215. 3(a)(3), (14). (e). 

.0917 PRETREATMENT PERMIT 
REVIEW 

(a) Each Upon issuance, each POTW shall 
transmit to the Division divi s ion copies of all 
issued Significant Industrial User pretreatment 
permits. 

Cb) For new Significant Industrial Users and 
for Significant Industnal Users identified as 
categorical industrial users, upon issuance, the 
POTW shall transmit to the Division : 

(1) Notice of actions taken by the POTW 
to the consideration of any permit 
application including a copy of each 
pretreatment permit and any condi- 
tions, requirements or documents 
which are related to the pretreatment 
permit, 

(2) A synopsis of the permit and an allo- 
cation table for the POTW receiving 
the discharge(s) . 

(fe cj The Division shall have 30 days from the 
receipt of pretreatment permits in which to make 
general comments upon, objections to or recom- 
mendations with resp)ect to the permit. Unless 
such an objection or request for more informa- 
tion in accordance with Paragraph (f) of this 
Rule is made^ the permit shall be final and bind- 
ing. 

(e d) Within 30 days of the receipt of a pre- 
treatment permit to which the Director has ob- 
jected the staff shall set forth in writing and 
transmit to the control authority; 

(1) A statement of the reasons for the 
objection, including the regulations 
that support the objection and; 

(2) Tlie actions which must be taken by 
the control authority to eliminate the 
objection including the effluent limita- 
tions and conditions which the permit 
would include if it were issued by the 
Division. 

(d e) The Director's objection to the issuance 
of a pretreatment permit must be based upon one 
or more of the following grounds: 

{ 1 ) the permit fails to apply or to ensure 
compliance with any applicable re- 
quirement of this Section; 



(2) the procedures followed in coimection 
with formulation of the pretreatment 
permit failed to comply with the 
procedures required by State Statute 
or by the POTW's approved pretreat- 
ment program; 

(3) a finding made by the control authori- 
ty in connection with the pretreatment 
permit which misinterprets any cate- 
gorical pretreatment standard or pre- 
treatment regulation or misapplies 
them to the fects, 

(4) the provisions of the pretreatment 
permit resulting relating to the mainte- 
nance of records, monitoring or sam- 
pling by the permittee are, in the 
judgment of the Director, inadequate 
to assure compliance with permit 
conditions or applicable pretreatment 
standards. 

(e f) Prior to notifying the POTW of asd an 
objection the d ircictor Director : 

(1) shall consider all data transmitted 
pursuant to Rule .0916 of this Sec- 
tion ; 

(2) may, if more information is needed to 
determine whether the preliminary 
permit is adequate, request the POTW 
to make available to the staff the 
complete record of permit proceed- 
ings, or any portions of the record 
that the Director determines are neces- 
sary for review. If this request Re- 
quests must be « made within 30 days 
of the state's receipt of the prelimi 
flsfy permit under Rule . 09 16 of this 
Section, and k shall constitute interim 
objection to the issuance of the permit 
and the full suspend the 30 day review 
period in .0917 Paragraph {%c) of this 
Rule, above shall recommence when 
When the staff has obtained saeb the 
requested record records or portions 
of the record-jj the staff shall have an 
additional 30 days for review; and 

(3) may, in his /her discretion and to the 
extent feasible within the period of 
time available, afford interested per- 
sons the opportunity to comment on 
the basis for the objection. 

(f g) If within 60 days of the receipt of the 
Director's objection the POTW does not 
resubmit a permit revised to meet the Director's 
objection, the Director may issue the permit in 
accordance with 15A NCAC 2H .0100. 



274 



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NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



Exclusive authority to issue the permit required 
by NCGS G.S. 143-215. 1(a) passes to the 
Division when this time expires. 

Statutory Authority G.S. 143-21 5(a); 143- 
215.1(a)Jc), 143-215. 3(a)(3). (14). (e). 

.0918 LOCAL LAW 

Nothing in the rules of this Section ]s intended 
to affect any pretreatment requirements, 
including any standards or prohibitions, 
established by local law as long as the local 
requirements are not less stringent than any set 
forth in National Pretreatment Standards, or any 
other requirements or prohibitions established 
under the Clean Water Act, the North Carolina 
General Statutes, or the rules of this Section. 

Statutory Authority G.S. 143-21 5. 1(a), (b); 143- 
215.3(a)(1). (14); 153A-274; 153A-275; 160A- 
311; 160A-312. 

.0919 BYPASS 

The regulations regarding the bypass provisions 
promulgated by the Environmental Protection 
Agency and codified as 40 CFR Part 403.17 are 
hereby incorporated by reference includin g any 
subsequent amendments and editions. This 
material is available for inspection at the 
Department of Environment. Health, and Natural 
Resources. Division of Environmental 
Management, Pretreatment Offices. Archdale 
Building. P Q Box 29535. 512 N^ Salisbury 
St.. Raleigh. NC 27626-0535. Copies may be 
obtained from the US Government Printing 
Office Bookstore. P Q Box 56445. Atlanta, 
Georgia 30343, phone number (404) 331-6947 
at a cost of twenty-six dollars ($26.00). 



ing, 512 N, Salisbury Street. P O Box 29535. 
Raleigh. North Carolina 27626-0535 at no 
charge. 

(b) In order to insure the proper operation and 
maintenance of facilities permitted under this 
Section and classified under the Rules of the 
Water Pollution Control System Operators Cer- 
tification Commission (15A NCAC 8). the Oper- 
ator in Responsible Charge, or a back-up o pera- 
tor when a ppropriate, must operate and visit the 
facility as required by the Water Pollution Con- 
trol System Operators Certification Commission 
as established in I5A NCAC 8A .0202. Copies 
of these Rules are available from the Division of 
Environmental Management, Water Quality 
Section, Archdale Building, 512 N. Salisbury 
Street, P O Box 29535, Raleigh, North Caroli- 
na 27626-0535 at no charge. 

Statutory Authority G.S. 143-215.3. 

,0921 REVISION TO REFLECT 

POTW REMOVAL OF POLLUTANT 

The regulations regarding removal credits 
promulgated by the Environmental Protection 
Agency and codified as 40 CFR Part 403.7 are 
hereby incorporated by reference including any 
subsequent amendments and editions. This 
material is available for inspection at the Depart- 
ment of Environment, Health, and Natural Re- 
sources, Division of Environmental Manage- 
ment, Pretreatment Offices, Archdale Building. 
P O Box 29535. 512 N, Salisbury St., Raleigh, 
NC 27626-0535. Copies may be obtained from 
the US Government Printing Office Bookstore, 
P O Box 56445, Atlanta, Georgia 30343, 
phone number (404) 331-6947 at a cost of twen- 
ty-six dollars ($26.00). 



Statutory Authority G. S. 
215.3(a)(14); 150B-21.6. 



143-21 5. 1(a)(1); 143- 



Statutory Authority G.S. 143-215. 1(a). (h); 143- 
215.3(a)(14); 150B-21.6. 



.0920 PRETREATMENT FACILITY 

OPERATION AND MAINTENANCE 

(a) Upon classification of facilities permitted 
under this Section and upon development of 
specific certification and training programs for 
operators of classified facilities, the permittee 
must designate an Operator in Responsible 
Charge and a back-up operator as required by 
the Water Pollution Control System Operators 
Certification Commission as established in 15A 
NCAC 8A .0202. Copies of this Ruk are avail- 
able from the Division of Environmental Man- 
agement. Water Quality Section, Archdale Build- 



9:4 



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May 16, 1994 



275 



PROPOSED RULES 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

fS otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Division of 
Motor Vehicles intends to adopt rules that imple- 
ment Part 2 of Article 3 A of Chapter 20 of North 
Carolina General Statutes. Specifically, the 
rules will establish standards for the motor vehi- 
cle safety and emissions inspection program. 
The agency will subsequently publish in the 
Register the text of the rules it proposes to adopt 
as a result of the public hearing and of any 
comments received on the subject matter. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on June 1, 1994 at the Division of Motor 
Vehicles Conference Room, Room 201 - DMV 
Annex, 1100 New Bern Avenue, Raleigh, NC 
27697. 

tveason for Proposed Action: To re\ise rules 
concerning the vehicle safety and emissions 
inspection program. 

{comment Procedures: Any person desiring to 
make oral comments should contact Alvin M. 
Fountain. Written comments should be submitted 
to Ahin M. Fountain, Division of Motor Vehi- 
cles, 1100 New Bern Avenue, Raleigh, NC 
27697. telephone (919) 733-3046. Written 
comments will be accepted until June 2, 1994. 



Instructions on How to Demand a Public Hear- 
ing (must be requested in writing within 15 days 
of notice): The agency will schedule a public 
hearing on the proposed rules if it receives a 
written request for a hearing within 15 days from 
the date the proposed text is published. The 
request for hearing should be mailed to: Emily 
Lee, PO. Box 25201, Raleigh, N.C. 27611. 

iveason for Proposed Action: 
19A NCAC 3B .0703 - To reduce the required 
length of time that a company or educational 
institution must be in business prior to certifica- 
tion as a Third Party Tester from rwY? years to 
six months. Also, to provide that Third Party 
Testers must administer at least five skills tests 
annually to maintain certification. 
19A NCAC 3B .0704 - To require all Third 
Party Examiners to successfully complete the 
CDL Examiner Training Course conducted by the 
Division of Motor Vehicles prior to certification. 
Persons who are certified prior to the effective 
date of this amendment must complete the course 
by January 1, 1995 to maintain certification as 
Third Party Testers. 

(comment Procedures: Oral or written com- 
ments will be accepted until 30 days after the 
text of the proposed rules are published or until 
a public hearing is held, whichever is longer. 
Written comments should be mailed to LaVeme 
Hill, Driver License Section, Division of Motor 
Vehicles, 1100 New Bern Ave., Raleigh, N.C. 
27697. Oral comments should be directed to 
LaVeme Hill at (919) 733-9308. 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

SUBCHAPTER 3B - DRIVER LICENSE 
SECTION 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Division of 
Motor Vehicles intends to amend rules cited as 
19A NCAC 3B .0703 - .0704. 

1 he proposed effective date of this action is 
August 1, 1994. 



SECTION .0700 - COMMERCIAL 
DRIVERS' LICENSE 

.0703 REQUIREMENTS FOR THIRD 
PARTY TESTERS 

(a) To be certified as a Third Party Tester a 
person must: 

(1) Make application to and enter into an 
agreement with the Division as pro- 
vided in Rule .0706 of this Section. 



276 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



(2) Maintain a place of business with at 
least one permanent regularly occu- 
pied structure within the state of 
North Carolina. 

(3) Ensure its place of business is safe 
and meets all requirements of state 
law and local ordinances. 

(4) Have at least one qualified and ap- 
proved Third Party Examiner in its 
employ. 

(5) Allow, FHWA, its representative(s), 
and the Division to conduct random 
examinations, inspections and audits 
without prior notice. 

(6) Allow the Division to conduct period- 
ic, but at least annual on-site inspec- 
tions. 

(7) Maintain at each third party testing 
location, for a minimum of two years, 
a record of each driver for whom the 
Third Party Tester conducts a skills 
test, whether or not the driver passes 
or foils the test. Each such record 
shall include: 

(A) The complete name and address of 
the driver; 

(B) The driver's social security number, 
driver's license number and the 
name of the state or jurisdiction that 
issued the license held by the driver 
at the time of the test; 

(C) The date the driver took the skills 
test; 

(D) The test score sheet(s) showing the 
results of the test; 

(E) The name and identification number 
of the Third Party Examiner con- 
ducting the skills test; 

(F) The record of all receipts and dis- 
bursements; 

(G) TTie make, model and registration 
number of the commercial motor 
vehicle(s) used to conduct the test- 
ing; and 

(H) The written contract (copy), if appli- 
cable, with any person or group of 
persons being tested. 

(8) Maintain at each approved testing 
location, a record of each Third Party 
Examiner in the employ of the Third 
Party Tester at that location. Each 
record shall include: 

(A) A valid Examiner Certificate indicat- 
ing the Examiner at that location; 



(B) A copy of the Third Party 
Examiner's current driving record, 
which must be updated annually; 
and 

(C) Evidence that the Third Party 
Examiner is a payroll employee of 
the Third Party Tester. 

(9) Retain all Third Party Examiner 
records for at least two years after the 
Third Party Examiner leaves the 
employ of the Third Party Tester. 

(10) Ensure that the skills tests are 
conducted in accordance with the 
requirements of this Section and the 
instructions provided by the Division. 

(11) Provide documented proof (using a 
form provided by the Division) to 
each driver applicant who takes and 
passes the required skills tests. Tlie 
driver applicant in turn will present 
the form to the Division as evidence 
that they successfully passed the 
driving tests administered by the 
Third Party. 

(12) To maintain certification the Third 
Party Tester must administer skills 
test to a minimum of five difl'erent 
driver applicants annually i_n 
accordance with the requirements of 
this Section and the instructions 
provided by the Division. 
addition to the requirements listed in 

(a) of this Rule, all Third Party 
not governmental entities or 



(b) In 
Paragraph 
Testers who are 
associations must: 



(1) Truck and Bus Companies: 

(A) Employ at least 25 North Carolina 
licensed drivers (full-time, part-time, 
or seasonal) of commercial motor 
vehicles. 

(B) Employ an individual who would be 
responsible for the organization's 
third party testing operation. 

(C) Have been in operation in North 
Carolina a minimum of two year s 
six months . (If in operation less 
than fwe — year s six months under 
current company name, identify 
previous company name(s) to cover 
the two year six months period. ) 

(2) Educational Institutions: 

(A) Have an established commercial 
motor vehicle training program. 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



277 



PROPOSED RULES 



(B) Have been in operation in North 
Carolina a minimum of two years 
six months . 

Statutory Authority G.S. 20-37. ] 3: 20-37.22. 

.0704 REQUIREMENTS FOR TfflRD 
PARTY EXAMINERS 

(a) Third Party Examiners may conduct skills 
tests on behalf of only one Third Party Tester at 
any given time. If a Third Party Examiner 
leaves the employ of a Third Party Tester he/she 
must reapply in order to conduct tests on behalf 
of a new Third Party Tester. 

(b) To qualify as a Third Party Examiner, an 
individual must: 

(1) Make application on a form provided 
by the Division; 

(2) Be a payroll employee of the TTiird 
Party Tester; 

(3) Possess a valid North Carolina 
Driver's License with classification 
and endorsements required for 
operation of the class and type of 
commercial motor vehicle used in the 
skills tests conducted by the 
Examiner; and 

(4) Have successfully completed a 

Division sanctioned the CDL 

Examiner Training Course conducted 
by the Division. Persons who were 
certified as Third Party Exammers 
prior to August J^ 1994 who did not 
successfully complete the CDL 
Examiner Training Course conducted 
by the Division must successfully 
complete that course prior to January 
J_i 1995 to maintain certification as 
Third Party Examiners . At a 

minimum upon completion of the 
training the Third Party Examiner 
shall have acquired and demonstrated 
the following knowledge and skills; 

(A) A comprehensive understanding of 
North Carolina G.S., Chapter 20 
Article 2C and the rules adopted 
pursuant thereto; 

(B) A working knowledge of the CDL 
testing procedures and forms; 

(C) Ability to administer and score 
correctly each of the CDL skills 
test; and 

(D) Knowledge of testing site and route 
requirements. 



(5) 
(6) 
(7) 

(8) 
(9) 



Take part in all Division required 

advanced training courses, workshops 

and seminars; 

Within ten years prior to application 

have had no convictions for Driving 

While Impaired (DWI); 

Within five years prior to application 

have had no driver's license 

suspensions, revocations, cancellations 

or disqualifications; 

Be at least 21 years of age aad 

possess — a — hiffe — school — diploma — ef 



equivalent ; 
Conduct skills tests on behalf of the 
TTiird Party Tester, in accordance 
with these Rules and in accordance 
with current instructions provided by 
the Division. 



Statutory Authority G.S. 20-37.13; 20-37.22. 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Division of 
Motor Vehicles intends to amend rules cited as 
19A NCAC 3J .0401, .0501. 

1 he proposed effective date of this action is 
August 1, 1994. 

Instructions on Hom' to Demand a Public Hear- 
ing (must be requested in writing within 15 days 
of notice): The agency will schedule a public 
hearing on the proposed rules if it receives a 
written request for a hearing within 15 days from 
the date the proposed text is published. The 
request for a hearing should be mailed to: Mark 
Fountain. School Bus & Traffic Safety, 1100 
New Bern Ave. , Raleigh, N. C. 27697. 

M\.eason for Proposed Action: 

19A NCAC 3 J .0401 - To allow Commercial 

Truck Driver Training Schools, that are also 

certified as "Third Party Examiners" by the 

Division of Motor Vehicles to use the schools 

equipment to conduct third party testing, for 

conunercial drivers license. 

19 A NCAC 3 J .0501 - To expand eligibility for 

Commercial Truck Driver Training Instructors 

License to include persons who do not have a 

high school diploma, but who have the requisite 



278 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



PROPOSED RULES 



training and experience as determined by the 
Division of Motor Vehicles. 

Cyomment Procedures: Oral or written com- 
ments will be accepted until 30 days after the 
text of the proposed rules are published or until 
a public hearing is held, whichever is longer 
Written comments should be mailed to: Mark 
Fountain, School Bus & Traffic Safety, 1100 
New Bern Ave., Raleigh, N.C. 27697. Oral 
comments should be directed to Mark Fountain 
at (919) 733-3046. 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

SUBCHAPTER 3J - RULES AND 

REGULATIONS GOVERNING THE 

LICENSING OF COMMERCIAL TRUCK 

DRIVER TRAINING SCHOOLS AND 

INSTRUCTORS 

SECTION .0400 - MOTTOR VEHICLES USED 
IN INSTRUCTION 

.0401 VEHICLE EQUIPMENT 

(a) Behind-the-wheel instruction of students in 
commercia] truck driver training schools sliall be 
conducted in motor vehicles owned or leased by 
the school. All vehicles used for the purpose of 
demonstration and practice shall: 

(1) If used for field instruction be 
equipped with: 

(A) seatbelts as required by Federal and 
State law; 

(B) an outside rearview mirror mounted 
on the right side of the vehicle; 

(C) a heater, defroster, turn signals and 
brakelights; and 

(D) all other equipment required by 
Chapter 20 of the North Carolina 
General Statutes except that a work- 
ing speedometer is not required, and 
the tire tread depth requirement may 
be met by using recapped tires so 
long as no cord or fabric is showing. 

(2) Bear conspicuously displayed signs 
with the words "Student Driver" in 
letters not less than six inches in 
height on both the front and rear of 
the vehicle and also bear conspicuous- 
ly displayed signs with the name and 
location of the school in letters not 
less than one and one-half inches in 



height on both sides of the power unit 
and on the back of the trailer, 
(b) No school equipment shall be used to 
transport property or persons for compensation, 
other than a properly enrolled student^ except 
when school equipment is used by certified third 
party examiners in accordance with the require- 
ments of Title 19A, Subchapter 38, Section 
.0700 of these Rules, while conducting third 
party testing, and the school may charge a rea- 
sonable fee for the use of the school's 
equipment . 

Statutory Authority G.S. 20-320 through 20-328. 

SECTION .0500 - REQUIREMENTS AND 

APPLICATIONS FOR DRIVER TRAINING 

INSTRUCTOR 

.0501 REQUIREMENTS 

(a) A Class I instructor is one entitled to 
conduct truck driver training in the classroom, 
on the field and on the road. Each Class I in- 
structor shall: 

(1) Be of good moral character. 

(2) Be at least 21 years of age, have at 
least two years experience operating a 
Class A vehicle and hold a valid Class 
A license; provided, on and after 
April 1, 1992 each instructor must 
hold a valid Class A commercial 
license from his state of residence. 

(3) Not have been convicted of a felony 
or convicted of a misdemeanor involv- 
ing moral turpitude in the ten years 
immediately preceding the date of 
application. 

(4) Not have had a revocation or suspen- 
sion of his driver's license in the two 
years immediately preceding the date 
of application 

(5) Have graduated from high school or 
hold a high school equivalency certifi- 
cate or relevant education, training 
and experience as determined by the 
Division . 

(6) Not have had convictions for moving 
violations totaling seven or more 
points in the year preceding the date 
of application. 

(7) Have evidence of United States De- 
partment of Transportation certifica- 
tion and qualify by experience or 
training, or both, to instruct students 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



279 



PROPOSED RULES 



in the safe operation of 
truck-tractor-traiier combination units. 

(b) A Class II instructor is one entitled to 
conduct truck driver training in the classroom 
and on the field only. Each Class II instructor 
shall: 

( 1 ) Be of good moral character. 

(2) Not have been convicted of a felony 
or convicted of a misdemeanor 
involving moral turpitude in the ten 
years immediately preceding the date 
of application. 

(3) Not have had a revocation or 
suspension of his driver's license m 
the two years immediately preceding 
the date of application. 

(4) Have graduated from high school or 
hold a high school equivalency 
certificate or relevant education, 
training and experience as determined 
by the Division . 

(5) Qualify by experience or training, or 
both, to instruct students in the safe 
operation of truck-tractor-trailer 
combination units. 

(c) A Class 1 or II instructor-trainee is one 
entitled to assist a licensed Class I or II 
instructor while his instructor's license 
application is pending at the Division. The 
Division must be notified in writing within five 
days of the date the trainee is hired. An 
instructor-trainee of either class: 

(1) may work in that capacity for only 30 
days from the date he is hired; 

(2) may instruct in the classroom and on 
the field only with a licensed instruc- 
tor present at all times; 

(3) may not instruct or accompany stu- 
dents on the road until licensed; and 

(4) must wear an identification badge 
which clearly identifies the individual 
as an instructor-trainee. 

Statutory Authority G. S. 20-320 through 20-328. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXAMINERS 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. State Board of Cosmetic 



Art Examiners intends to adopt rule cited as 21 
NCAC 14F .0014. 

1 he proposed effective date of this action is 
August 1, 1994. 

Instructions on How to Demand a Public Hear- 
ing (must be requested in writing within 15 days 
of notice): Anyone wishing to demand a public 
hearing may contact Vicky Goudie, Executive 
Secretary, N. C. State Board of Cosmetic Art 
Examiners. 1110 Navaho Dr., Raleigh, N.C. 
27609, (919) 850-2793. This demand must be in 
writing and received by May 31 , 1994. 



MXeason for Proposed Action: 
88-21 (8)(9)(10); G.S. 88-25. 



To clarify G.S 



L^omment Procedures: Written comments re- 
garding this Rule should be mailed or delivered 
to Vicky Goudie, Executive Secretary, 1110 
Navaho Dr. , Raleigh, N. C. 27609, and received 
by June 15, 1994. 

SUBCHAPTER 14F - RULES AfO) 
REGULATIONS GOVERNING THE 
LICENSING OF BEAUTY SALONS 

.0014 SALON RENEWAL 

(a) From January 1st to February 1st, the fee 
to renew the salon license will be three dollars 



($3.00) per active chair. 

(b) From February 2nd to March 1st, the fee 
to renew the salon license will be three dollars 
($3.00) per active chair plus a ten dollar 



($10.00) penalty fee. 

(c) On and after March 2nd, the fee to renew 
the salon license will be three dollars ($3.00) per 
active chair plus a ten dollar ($10. (X)) penalty fee 
and a twenty-five dollar ($25.00) reissuance fee 
of an expired license. 

(d) If a salon license is expired more than one 
renewal period, the fee to renew the salon li; 
cense will include one reissuance fee and all 
penalty fees for the years of operation without a 
valid license. 



Statutory Authority 
88-25. 



G.S 88-21 (8), (9), (10); 



280 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



LIST OF RULES CODIFIED 



The List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 



K 



ey: 



Citation = Title, Chapter, Subchapter and Rule(s) 

AD = Adopt 

AM = Amend 

RP = Repeal 

With Chgs = Final text differs from proposed text 

Corr = Typographical errors or changes that requires no rulemaking 

Eff. Date = Date rule becomes effective 

Temp. Expires = Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLEVA ADMINISTRATIVE CODE 
APRIL 94 



[TLE 


DEPARTMENT 


4 


Commerce 


10 


Human Resources 


11 


Insurance 


13 


Labor 


15A 


Environment, Health, and 




Natural Resources 


17 


Revenue 


19A 


Transportation 



TITLE DEPARTMENT 

21 Occupational Licensing Boards 

8 - Certified Public Accountant Examiners 
16 - Dental Examiners 
21 - Geologists Examiners 
56 - Registration of Professional Engineers 
and Land Surveyors 

23 Community Colleges 

24 Independent Agencies 

5 - State Health Plan Purchasing Alliance 
Board 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


4 NCAC 1 - 2 SOC 










/ 






2 TOC 










/ 






2M .0000 










/ 






2N .0000 










/ 






20 .0000 










/ 






2P .0000 










/ 






2Q .0000 










/ 






10 NCAC IN .0001 - .0008 


/ 










05/01/94 




3B .0901 - .0903 


• 










07/01/94 




3L .1003 




/ 




/ 




06/01/94 




19-30 SOC 










/ 









NORTH CAROLINA REGISTER 



May 16, 1994 



281 









LIST OF RULES CODIFIED 








■ 


Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp, 
Expires ■ 


10 


NCAC 


261 


.0100 










/ 










35A 


.0003 










/ 










41F 


.0704 




/ 




/ 




05/01/94 








49B 


.0306 




/ 




/ 




05/01/94 




11 


NCAC 


10 


.0308 






/ 






05/01/94 




.1201 - .1202 




/ 




/ 




05/01/94 




.1206 




/ 




/ 




05/01/94 




.1303 


/ 






/ 




05/01/94 




.1403 


/ 






/ 




05/01/94 








llA 


.0601 - .0609 






/ 






05/01/94 




13 


NCAC 


7A 


.0707- .0711 




/ 




/ 




05/01/94 








7F 


.0101 




/ 




/ 




05/01/94 




.0201 




/ 








04/15/94 




.0401 




/ 




/ 




05/01/94 




.0501 




/ 








04/15/94 




15A 


NCAC 


lOB 


.0115 




/ 








07/01/94 




.0202 - .0203 




/ 




/ 




07/01/94 




,0209 




/ 




/ 




07/01/94 




.0212 




/ 




/ 




07/01/94 








IOC 


,0205 




/ 




/ 




07/01/94 




,0305 




/ 




/ 




07/01/94 




.0401 




/ 








07/01/94 




.0404 




/ 




/ 




07/01/94 




.0407 




/ 








06/01/94 








lOD 


.0003 




/ 




/ 




07/01/94 








lOF 


.0310 




/ 








05/01/94 




.0330 




/ 








06/01/94 




.0336 




/ 








06/01/94 




.0366 


/ 










06/01/94 








11 


.1423 


/ 






/ 




07/01/94 








13B 


.1628 










/ 










18D 


.0206 




/ 








05/01/94 




17 


NCAC 


38 


.0114 


/ 










05/01/94 





282 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corn 


Eff. 
Date 


Temp. 
Expires 


17 NCAC 6B .0107 




/ 








05/01/94 




.0115 




/ 








05/01/94 




.0117 




/ 








05/01/94 




.0118 


/ 










05/01/94 




.0612 




/ 








05/01/94 




.3406 




/ 








05/01/94 




,3503 




/ 








05/01/94 




.3513 




/ 








05/01/94 




7B .4408 




/ 








05/01/94 




19A NCAC 3D .0516 


/ 










04/15/94 


1 80 DAYS 


19A NCAC 5B .0102 
transferred and recodified to 
II 19A NCAC 5B .0209 












05/01/94 




21 NCAC 8H .0002 










/ 






8M .0102 










/ 






.0201 










/ 






8N .0103 










/ 






.0405 










/ 






161 .0002 - .0005 


/ 






/ 




05/01/94 




21 NCAC 161 .0002 - .0005 
transferred and recodifed existing to 
21 NCAC 161 .0006 - .0009 












05/01/94 




16R .0001 - .0005 


/ 






/ 




05/01/94 




21 .0107 




/ 








05/01/94 




56 .0403 




/ 








05/01/94 




.0502 




/ 




/ 




05/01/94 




.0505 




/ 








05/01/94 




0602 




/ 




/ 




05/01/94 




.0606 




/ 




/ 




05/01/94 




.0802 




/ 








05/01/94 




.0804 




/ 








05/01/94 




.0901 - .0902 




/ 








05/01/94 




.1103 




/ 








05/01/94 




.1105 




/ 








05/01/94 





9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



283 





LIST OF RULES CODIFIED 






1 


1 


Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.1302 




/ 




/ 




05/01/94 




23 


NCAC 2D .0202- .0203 




/ 




/ 




06/01/94 




.0325 - .0326 




/ 




/ 




06/01/94 




2E .0402 




/ 




/ 




06/01/94 




24 


NCAC 5 .0101 - .0102 


/ 










04/22/94 


180 DAYS 


.0200( reserved) 
















.0301 - 0303 


/ 










04/22/94 


180 DAYS 



284 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



RRC OBJECTIONS 



Ihe Rules Review Commission (RRC) objected to the following rules in accordance with G.S 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



HUMAN RESOURCES 

Children's Services 

10 NCAC 41 F .0704 - Physical Facility 
Agency Revised Rule 

Facility Services 

10 NCAC 3L .0906 - Compliance with Laws 
Rule Withdrawn by Agency 

Medical Assistance 

10 NCAC 261 .0304 - Hearing Procedures 

Agency Revised Rule 

INSURANCE 

Financial Evaluation Division 

11 NCAC lie .0308 - Foreign HMO: Successful Operation 

Agency Revised Rule 
11 NCAC 1 IF .0207 - Specific Standards for Morbidity, Interest and Mortality 

Agency Revised Rule 
11 NCAC IIF .0208 - Reserves for miver of Premium 

Agency Revised Rule 

LABOR 



RRC Objection 04/21/94 
Obj. Removed 04/21/94 



04/21/94 



RRC Objection 03/17/94 
Obj. Removed 03/17/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Retnoved 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



OSHA 



13 NCAC 7A .0707 - Variances and Other Relief Under Section 95-1 32(a) 

Agency Revised Rule 
13 NCAC 7 A .0708 - Variances and Other Relief Under Section 95-1 32(b) 

Agency Revised Rule 
13 NCAC 7 A .0709 - Modification: Revocation: and Renewal of Rules or Orders 

Agency Revised Rule 
13 NCAC 7 A .0710 - Action on Applications 

Agency Revised Rule 
13 NCAC 7 A .0711 - Request for Hearings on Applications 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 
Certified Public Accountant Examiners 

21 NCAC 8A .0105 - Purposes and Responsibilities 



RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 


RRC Objection 


04/21/94 


Obj. Removed 


04/21/94 



RRC Objection 03/17/94 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



285 



RRC OBJECTIONS 



Agency Repealed Rule 
21 NCAC 8F .0103 - Filing of Examination Applications and Fees 

Agency Revised Rule 
21 NCAC 8F .01 12 - Candidate's Request to Sit in Another Jurisdiction 

Agency Revised Rule 
21 NCAC 8G .0409 - Computation of CPE Credits 

Agency Revised Rule 
21 NCAC 8J .0008 - Firm Registration 

Agency Revised Rule 
21 NCAC 8N .0103 - CPAs Outside North Carolina 

Agency Withdrew Rule 

Dental Examiners 

21 NCAC 161 .0003 - License Void Upon Failure to Renew 

Agency Revised Rule 
21 NCAC 16R .0002 - Approved Courses and Sponsors 

Agency Revised Rule 

Medical Examiners 

21 NCAC 32B .0402 - Fee 

Agency Revised Rule 
21 NCAC 32B .0706 - Fee 

Agency Revised Rule 

Real Estate Appraisal Board 

21 NCAC57A .0210 - Temporary Practice 

Agency Revised Rule 
21 NCAC 57B .0207 - Administration 

Agency Revised Rule 
21 NCAC 573 .0306 - Instructor Requirements 

Agency Revised Rule 
21 NCAC 57B .0603 - Criteria For Course Approval 

Agency Revised Rule 
21 NCAC 57C .0104 - Petition to Reopen Proceeding 

Agency Re\ised Rule 

PUBLIC EDUCATION 

Elementary and Secondary Education 

16 NCAC 6C .0307 - Certificate Renewal 
Agency Revised Rule 

16 NCAC 6E .0202 - Interscholastic Athletics 

REVENUE 

Individual Income Tax Division 

17 NCAC 6B .0612 - Tax Credit for Qualified Business Investments 

Agency Revised Rule 

STATE TREASURER 



Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 

03/17/94 



RRC Objection 04/21/94 

Obj. Removed 04/21/94 

RRC Objection 04/21/94 

Obj. Removed 04/21/94 



RRC Objection 03/17/94 

Obj. Removed 03/17/94 

RRC Objection 03/17/94 

Obj. Removed 03/17/94 



RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 



RRC Objection 04/21/94 
RRC Objection 04/21/94 
RRC Objection 04/21/94 



RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 



286 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



RRC OBJECTIONS 



Collateralization or Deposits 

20 NCAC 7 .0202 - Amount of Collateral Required to be Pledged RRC Objection 03/17/94 

Agency Revised Rule Obj. Removed 03/1 7/94 

20 NCAC 7 . 0603 - Acceleration of Maturities RRC Objection 03/1 7/94 

Agency Revised Rule Obj. Removed 03/1 7/94 



9:4 NORTH CAROLINA REGISTER May 16, 1994 287 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are avail- 
able upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733- 
2698. 



AGENCY 

ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Rayw>n Stevrart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bemajd Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm 

Edaard Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm 

Robert Kovalaske, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Raleigh Limite, Inc. 

COMMERCE 

Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Com^ction 

CRIME CONTROL AND PUBLIC SAFETY 

Crime Victims Compensation Commission 

James Hugh B^nes v. Cnme Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 
James A. Canady v. Cnme Victims Compensation Commission 
Virginia Roof v Department of Crime Control & Public Safety 
Percy Clark v Cnme Victims Compensation Commission 
Barbara Henderson v. Crime Victims Compensation Commission 
Shirley Handsome v. Cnme Victims Compensation Commission 
Georgeann Young v. Cnme Victims Compensation Commission 
Lawrence L. Tyson v. Crime Victinw Compensation Commission 
Mary E. Haskins v. Cnme Victims Compensation Commission 

EmiRONMENT, HEALTH. AND NATURAL RESOURCES 



CASE 
NUMBER 



94 DOA 0242 



94 DOC 0252 



AU 



n\TEOF 
DECISION 



West 



93 COM 1622 Chess 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Bee ton 


04/21/94 


93 ABC 1485 


Mann 


03/11/94 



03/01/94 



Momson 03/21/94 



93 CPS 0801 


West 


03/28/94 


93CPS 1104 


West 


04/21/94 


93 CPS 1 108 


Gray 


03/28/94 


93 CPS 1347 


Nesnow 


03/24/94 


94 CPS 0127 


Reilly 


04/19/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0286 


Gray 


04/28/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 0368 


Gray 


04/26/94 


94 CPS 1406 


Gray 


03/17/94 



PUBLISHED DECISION 
REGISTtat CITATION 



9:2 NCR 114 



Coastal Management 

Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Em'ironmental Mgml 
Roger Fuller v, EHNR, Divs. of Coastal Mgmt & Eiivifr)nmental Mgml 
Gary E. Montalbinc v. Division of Coastal Management 



89 EHR 1378- Gray 04/07/94 

90EHR0017*^ Gray 04/07/94 

93 EHR 1792 Nesnow 03/21/94 



Consolidated Cases, 



288 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 

DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Environmental Health 

Jane C. O'Malley, Melvin L. Cartwright v. EHNR & District HIth Dept 9 1 EHR 0838 

PSsquotank-Psnquimans-Camden-Chcw/an 

Environment, Health, &. Natural Res. v. Claric Hams & Jessie Lee Harris 93 EHR 0924 

Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 94 EHR 0200 



Environmental Management 

Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack GritEn v. Dept. of Environment, Health, and Natural Resources 



93 EHR 0531 
93 EHR 1030 



Marine Fisheries 

Robert I. Swinson, Viijinia S. Swinson v. EHNR, Div/Marine Fisheries 93 EHR 0394 



SoUd Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 
Bertie Citizens Action Coalition, Inc.; Willard J. Oliver, Reginald Early, 
Herbert Jenkins, Jr., Lindwood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Environmental 
Inc., et al. 

HUMAN RESOURCES 

Division of Child Development 

Judith Fridl^ v. Div. of Child Development/Abuse/Nc^lect Unit 

DHR, Division of Child Development v. Joyce Gale 

Gloria C. Haith v. Department of Human Resources 

Gloria C Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Living Woid Day Care, Jonathan Lankfoid v. Dept. of Human Resources 

Facility Services 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. Cert of 
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion 
Corp. and Howard F. Marks, Jr., M.D. 

Prealyterian-Orthopaedic Hospital v. Department of Human Resources 

Lowell StaflFond v. Department of Human Resources 

Diiision of Medical Assistance 

J.R., by and throiigb her agent & Peisonal Rep., Hank Neal v. DHR 

David Yott v. Department of Human Resources 

Division of Medical Assistance v. Catawba Cty Dept. of Social Services 

Division of Social Services 

Evelyn Moore v. Department of Human Resouiees 

Child Support Enforcement Section 

William Heekstall v. Department of Human Resources 
Bryan Jeffrey Cole v. Department of Human Resources 
Dexter L. Chambes v. Department of Human Resources 
Ronald E. Johnson v. Department of Human Resources 
Roger Moore v. Department of Human Resources 
Alvin Lee Martin v. Department of Human Resources 
Robert Young v. Department of Human Resources 
Antonio Townsend v. Department of Human Resources 
Trey E. Pinkn^ v. Department of Human Resources 
Anthoiy A. Macon v. Department of Human Resources 
Walter Lee Corbett v. Department of Human Resources 
Joe Louis Mayo v. Department of Human Resources 



93 EHR 0951 
93 EHR 1045 



94 DHR 0293 



Becton 04/06/94 



Beeton 03/03/94 

Nesnow 04/27/94 



Chess 03/21/94 

Becton 03/21/94 



Gray 04/11/94 



Gray 03/28/94 

Morrison 04/06/94 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0168 


Nesnow 


03/23/94 



93 DHR 0746 


Morgan 


04/11/94 


93 DHR 0805 


ReiUy 


03/11/94 


93 DHR 1381 


Gray 


04/15/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1778 


West 


03/04/94 



Reilly 



04/15/94 



93 CSE 1077 


Reilly 


03/14/94 


93CSE 1091 


Becton 


03/30/94 


93 CSE 1124 


West 


03/28/94 


93 CSE 1 125 


Becton 


03/30/94 


93 CSE 1127 


Becton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1139 


Becton 


03/30/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE U50 


Reilly 


03/30/94 


93 CSE 1161 


West 


04/19/94 



9:3 NCR 214 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



289 



CONTESTED CASE DECISIONS 



AGENCY 



Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Belly A. ^Villiams, Fred E. Jones v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Bemadett Cook v. Department of Human Resources 

Dennis W. Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Vaughn D. Pearsall v. Department of Human Resources 

Sidney Ray Tuggle Jr. v. Department of Human Resources 

George Aaron Collins v. Department of Human Resources 

Samuel L. Dodd v. Department of Human Resources 

William A. Sellers v. Department of Human Resources 

Kenneth W Cooper v. Department of Human Resources 

Steven A. Elmquist v. Department of Human Resources 

Daniel Thomas Hefele v. Department of Human Resources 

Alton D. Johnson v. Department of Human Resources 

Chester Sandeis v. Department of Human Resources 

Rodn^ Guyton v. Department of Human Resources 

Timothy D. Evans v. Department of Human Resources 

Billy EdftanJ Smith v. Department of Human Resources 

Ray C Moses v. Department of Human Resourc^es 

Bart Ransom v, Department of Human Resources 

William H. Simpson Sr. v. Department of Human Resources 

Dwayne Lamonl Thompson v. Department of Human Resources 

Michael Wilder v. Department of Human Resources 

Wade A. Burgess v. Department of Human Resources 

Timothy J. Jones v. Department of Human Resourc^cs 

Randall E. Hunter v. Department of Human Resources 

Alton E. Simpson Jr v. Department of Human Resources 

Royston D. Blandfoid IH v. Department of Human Resources 

JUSTICE 

Alarm Systems Licensing Board 

Alarm Systems Licensing Board v. George P. Baker 

Private Protective Services Board 

Larry C. Hopkins v. Private Protective Services Board 

Training and Standards Division 



CASE 




DATE OF PUBLISHED DECISION 


NU7HBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1181 


Becton 


04/20/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1267 


Becton 


04/20/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gr^ 


03/31/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE !497 


West 


04/19/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1591 


Becton 


04/20/94 


94 CSE 0095 


West 


04/19/94 



93 DOJ 0457 



93 DOJ 1618 



Nesnow 



03/10/94 



Morrison 03/07/94 



Curtiss Lance Poteat v. Criminal Justice Ed, & Training Sids- Comm 93 DOJ 0231 

Willie David Moore v Criminal Justice Ed. & Training Stds. Comm. 93 DOJ 1071 

Glenn Tra\'is Stout v. Criminal Justice Ed. & Training Stds. Comm. 93 DOJ 1409 

Gregory Blake Manning v. Criminal Justice Ed. & Training Sids. Comm. 94 DOJ 0048 



Chess 03/28/94 

Nesnow 04/11/94 

Gray 03/03/94 

Gray 03/29/94 



9:3 NCR 218 



MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, &. Brown's f^ineral Directors 
PUBLIC EDUCATION 



93 EMS 0532 



Chess 



03/28/94 



Nancy Watson v. Board of Education 

Janet L. Wilcox v. Carteret County Board of Education 



93 EDC 0234 
93 EDC 0451 



Chess 
Mann 



02/28/94 
02/21/94 



9:2 NCR 108 



STATE HEALTH BENEFITS OFFICE 



Linda C. Campbell v. Teachers & St Emp Major Medical Plan 93 INS 0410 

Timothy L. Coggins v. Teachers' & St Emp Comp Major Med Plan 93 INS 0929 



Becton 04/22/94 

Morrison 03/04/94 



STATE PFJISONNEL 

Agricultural and Technical State University 



290 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



CONTESTED CASE DECISIONS 



AGENCY 

Linda D. Williams v. Agricultural and Technical State Univeisity 
Juaoita D. Murphy v. Agriculluial and Technical State University 
Thomas M. Simpson v. Agriculluial and Technical State University 

Catawba County 

Sandia J. Cunningham v. Catawba County 
North Carolina Central University 

Ha-Vilyah Ha-She'B v. NCCU 

Department of Commerce 

Ruth Daniel-fcrty v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 
Bert Esworthy v. Department of Correction 
Alfred B. Hunt v. Department of Correction 
Adrian E. Graham v. Intensive Pnabation/ftrole 

Department of Crime Control and Public Safety 

Fred L. Kearney v. Department of Cnme Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 

Emplaynunt Security Commission of North Carolina 

Rejeaime B. LeFrancois v. Employment Security Commission of N.C. 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School 

Durham County Department of Social Services 
Belirxia F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 

Mental Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 

Vhke County Mental Health, Developmental Disabilities, and Subsuince 

Julia Morgan Brannon v. Wake County MD/DD/SAS 

Department of Transportation 

Gletm I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportetion 
Gleim I. Hodge Jr v. Samuel Hunt, Sec'y Dept of Transportation 
Betsy Johnston Pawell v. Department of Transportetion 
Cljde Lem Haiiston v. Department of TransporBtion 

STATE TREASURER 

Retirement Systems Division 

John C. Russell v. Bd. /Trustees/Teachers' & Stale Emplcyees' Ret. Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret System 
Elizabeth M. Dudl^ v. Bd. /Trustees/Teachers' & Stale Emplcyees' 
Retirement System 



CASE 
NUMBER 



93 OSP 0089 
93 OSP 0708 
93 OSP 1393 



93 OSP 1097 



93 OSP 0875 



93 OSP 0725 



91 OSP 0401 

92 OSP 1463 



93 OSP 1069 



93 OSP 0728 

93 OSP 1604 
Abuse Services 

94 OSP 0214 



ALJ 



Chess 

Morrison 

Gray 



Reilly 



Bee Ion 



Chess 



DATE OF 
DECISION 



03/23/94 
03/16/94 
03/24/94 



04/29/94 



04/13/94 



03/04/94 



91 OSP 1287 


Chess 


02/22/94 


93 OSP 0711 


Chess 


04/21/94 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0261 


Morrison 


04/26/94 



West 
Reilly 



West 



Chess 



Becton 



Reilly 



03/18/94 
03/21/94 



04/08/94 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


94 OSP 0087 


Chess 


03/16/94 



04/11/94 



03/18/94 



04/14/94 



PUBLLSHED DECISION 
REGISTER CITATION 



93 DST 0164 
93 DST 0785 
93 DST 1474 



West 03/07/94 

Becton 03/18/94 

Nesnow 03/28/94 



9;4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



93 OSP 0297*' 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500*' 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0944 


Chess 


02/28/94 







9:1 NCR 68 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



291 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CATAWBA 



IN THE OFFICE OF 

ADMESISTRATTVE HEARINGS 

93 OSP 1097 



SANDRA J. CUNNINGHAM 
Petitioner, 

V. 

CATAU'BA COUNTY 
Respondent. 




BACKGROUND: 

This matter was heard in Newton, Catawba County, North Carolina, on March 23 and 24, 1994, 
by Administrative Law Judge Robert Roosevelt Reilly, Jr. The Petitioner initiated the case on October 13, 
1993, in order to appeal the decision of Respondent Catawba County to terminate her from the position of 
Social Work Supervisor IH, which termination was effective on July 9, 1993. The record closed on 
March 24, 1994, after the parties completed their presentation of evidence and their final arguments. 

ISSUES: 



Whether Petitioner was dismissed in contravention to North Carolina General Statute Section 126- 



30. 



STATUTES AND RULES INVOLVED: 

N.C.G.S. Sections 126-5, 126-30 and 126-35 

SUIVIMARY OF DECISION: 

Petitioner's appeal should be granted because the Respondent County dismissed Petitioner in 
contravention to North Carolina General Statute Section 126-30. 

APPEARANCES FOR PETITIONER: 

Samuel H. Long, IH, Attorney at Law, Post Office Box 3827, Hickory, North Carolina, 28603. 

APPEARANCES FOR RESPONDENT: 

Carolyn Crouch, Staff Attorney, Catawba County Department of Social Services, Post Office Box 
389, Newton, North Carolina, 28658. 

WITNESSES: 

The Petitioner presented the following witnesses: 
Sandra J. Cunningham 

The Respondent presented no witnesses. 



292 



9:4 



NORTH CAROLINA REGISTER 



May 16, 1994 



CONTESTED CASE DECISIONS 



Sandra Cunningham's Resume and College Transcript. 

Copy of public advertisement for the position for which Petitioner was employed, which 
advertisement was placed by Respondent Catawba County in the Asheville Citizen Times 
and appeared on Sunday, November 12, 1989. 

3. Petitioner's application for employment to Catawba County. 

4. December 22, 1989, letter to Petitioner from Bobby K. Boyd, Catawba County Depart- 
ment of Social Services Director, offenng employment to Petitioner. 

5. January 5, 1990, job description for Petitioner's job. 

6. January 22, 1990, job description for Petitioner's job signed by Andrea Benfield and 
Bobby Boyd. 

7. December, 1978, letter to Petitioner from Academy of Certified Social Workers advising 
Petitioner of her admission to the Academy of Certified Social Workers. 

8. Code of Ethics of National Association of Social Workers which was enclosed with De- 
cember, 1978, letter, exhibit "7". 

9. A second December, 1978, letter to Petitioner from the Academy of Certified Social 
Workers which was enclosed with the December, 1978, letter, exJiibit "7". 

10. The envelope in which exhibits "7", "8", and "9" were mailed to Petitioner by the Acade- 
my of Certified Social Workers and a copy of a business reply envelope which was also 
included in that December, 1978, mailing. 

11. Pfctitioner's certificate attesting to her entitlement to use the designation ACSW as of 
November, 1978, and bearing a 1981/82 ACSW gold-colonsd sticker. 

12. Memorandum of May 4, 1993, from Petitioner to Andrea Benfield. 

13. Letter of May 10, 1993, to Bobby Boyd from Angela Phillips. 

14. Letter of July 1, 1993, to Petitioner from Andrea Benfield. 

15. Letter of July 2, 1993, to Petitioner from Bobby Boyd and Andrea Benfield. 

16. Letter of July 9, 1993, to Bobby Boyd and Andrea Benfield from Petitioner's counsel. 

17. Letter of July 12, 1993, to Petitioner from Bobby Boyd and Andrea Benfield. 

BASED UPON A PREPONDERANCE OF THE EVIDENCE ADMITTED INTO THE RE- 
CORD IN THIS CASE, THE ADMINISTRATIVE LAW JUDGE MAKES THE FOLLOWING 
FINDINGS OF FACT: 

1. Catawba County is a political subdivision of the State of North Carolina. The Catawba 

County Department of Social Services is a part of the Catawba County government. Employees of the 
Catawba County Department of Social Services are subject to the North Carolina State personnel system, 
N.C.G.S. Chapter 126, by virtue of the provisions of N.C.G.S. 126-5(a)(2). 



NORTH CAROLINA REGISTER May 16, 1994 293 



CONTESTED CASE DECISIONS 



2. Catawba County has adopted a personnel ordinance which acknowledges that employees 
of its Department of Social Services are subject to the provisions of N.C.G.S. Chapter 126. The Catawba 
County Personnel Ordinance, Chapter 16 of the Catawba County Code, of which the Court takes judicial 
notice, also provides for an employee grievance procedure and for appeal by an employee to the office of 
Administrative Hearings. 

3. Sandra J. Cunningham, Petitioner, was employed by Catawba County Department of 
Social Services as of January 15, 1990, as a Social Work Supervisor III. Petitioner is subject to the North 
Carolina State personnel system, N.C.G.S. Chapter 126. 

4. After having received her dismissal letter as set forth hereunder. Petitioner gave 
appropriate notice to Catawba County of her desire to pursue her remedies through the County grievance 
procedure. Petitioner did pursue those remedies as prescribed by the Catawba County Code. After 
Petitioner was denied relief after hearings before Catawba County Department of Social Services Director 
Bobby K. Boyd and Catawba County Manager J. Thomas Lundy, respectively, Petitioner, in apt time 
made proper request to the Office of Administrative Hearings for a contested case hearing. 

5. This case was assigned in due course to the undersigned Administrative Law Judge and 
was noticed for hearing to begin on March 23, 1994, in Newton, Catawba County, North Carolina. 

6. The Petitioner was present with her attorney, Samuel H. Long, IH, Esq. of Hickory, 
North Carolina. Respondent, Catawba County, was represented by Staff Attorney Carolyn Crouch. 
Present with Ms. Crouch on the first day of hearing were County Personnel Director Janith Huffman, 
Catawba County Department of Social Services Director Bobby K. Boyd, and Catawba Count^' 
Department of Social Services Program Administrator Andrea T. Benfield. Only Ms. Crouch appeared 
for Respondent Catawba County on the second day of hearing. 

7. On July 2, 1993, Respondent mailed to Petitioner a letter (Exhibit "15") wherein, inter 



alia . Respondent offered Petitioner a disciplinary demotion in lieu of dismissal. The reason given for the 
disciplinary demotion or dismissal was that Petitioner had allegedly falsified information on her 
employment application to Catawba County through misrepresenting her credentials on that application. 
Specifically the County contended that Petitioner had falsely claimed to be certified by ACSW, the 
Academy of Certified Social Workers, a national professional organization for social workers. 

8. Petitioner responded to Respondent's letter by means of a letter from her attorney which 
was dated July 9, 1993, (Exhibit "16") and which was hand-delivered to Respondent on that date, 
wherein, inter alia . Petitioner declined Respondent's offer of a demotion in lieu of termination and advised 
that she wished to pursue her remedies through the County's grievance procedure. 

9. In her letter of July 9, 1993, Petitioner, among other things, requested to be allowed to 
continue to work for Respondent in the position which she had previously been occupying or to accept 
reassignment to some other position within the Department of Social Services pending outcome of the 
grievance procedure and any appeals therefrom . 

10. By letter of July 12, 1993, to Petitioner from Respondent's employees Bobby Boyd and 
Andrea Benfield, Respondent acknowledged receipt of Petitioner's letter of July 9, 1993, confirmed the 
termination of Petitioner's employment with the Catawba County Department of Social Services effective 
July 9, 1993, at 5:00 p.m., and demed Petitioner's request to be allowed to continue in her current 
employment pending a grievance process and any appeals therefrom (Exhibit "17"). 

11. Petitioner was employed by Respondent on or about January 15, 1990, as a Social Work 
Supervisor III. She was placed in charge, inter alia , of the adoption and foster care services of the 
Catawba County Department of Social Services. She remained in that position until she was discharged 
effective June 9, 1993. 



294 9:4 NORTH CAROLINA REGISTER May 16, 1994 



CONTESTED CASE DECISIONS 



12. The Social Work Supervisor III position for which Petitioner was employed by 
Respondent Catawba County had as its minimum education and special training requirements, a Bachelor's 
Degree in Social Work and 4 years direct service experience. A Master's in Social Work was listed as a 
preferred qualification. Four (4) years of social work experience in a social service agency was required. 
The only license or certificates which were required were a North Carolina driver's license and a 
defensive driving course. As to special knowledge, abilities, skills, physical requirements, etc., the job 
required "extensive knowledge of social work principles and methodologies and a strong background in 
child welfare areas of foster care and adoption." (See Petitioner's Exhibits "5" and "6") 

13. Petitioner graduated from the University of North Carolina at Chapel Hill in 1972 with a 
Bachelor's Degree in Sociology. She graduated from the University of North Carolina at Chapel Hill's 
School of Social Work in December of 1973 with a Master's Degree in Social Work (MSW). At the time 
of her employment by Catawba County, she was enrolled in a Master's of Business Administration Degree 
program at the University of North Carolina at Charlotte. 

14. Petitioner began her professional work career in Winston-Salem, North Carolina, where 
she was a case worker for the North Carolina Division of Services for the Blind from April of 1974 to 
June of 1975. From December of 1975 to January of 1977, Petitioner was employed by the National 
Opinion Research Center as a Study Coordinator locating participants and doing structured interviews in 
regard to a federally funded health insurance study. At that time Petitioner lived and worked in the 
Charleston, South Carolina, area. From April of 1977 until July of 1979, Petitioner was a Cottage 
Director/Social Worker, and subsequently the Director of Treatment Services for the Oak Grove 
Residential Treatment Center in North Charleston, South Carolina. From August of 1979 to October of 
1986, Petitioner was employed by the Berkeley County Youth Development Center in Mocks Comer, 
South Carolina, as Program Director. From 1976 through October of 1986, Petitioner lived in 
Summersville, South Carolina. 

15. In December of 1986 until January of 1990, when Petitioner went to work for Catawba 
County, Petitioner was employed by Lutheran Family Services with offices in Dallas, North Carolina, as 
Area Director. In that connection she had overall administrative supervision responsibility for that 
program and its various social welfare programs and activities. 

16. With the possible exception of the period when Petitioner was employed as a Research 
Study Coordinator for approximately 14 months, all of Petitioner's professional work activities have been 
with social service agencies either in direct service delivery or in administration. 

17. Petitioner had at least 15 years of experience in social work direct service and 
administration as well as a Bachelor's and Master's Degree when she applied to Catawba County for 
employment. 

18. The Respondent County does not claim that Petitioner is or was in any way deficient with 
respect to her educational or experience qualifications for the job which she was employed and the 
undersigned finds that she was well qualified by education and experience for the position for which she 
was employed. 

19. On Petitioner's Resume which was submitted to Catawba County when Petitioner applied 
for employment. Petitioner lists the Academy of Certified Social Workers, the National Association of 
Social Workers, the University of North Carolina School of Social Work Alumni Association, and the 
National Foster Parents Association among her professional memberships. (See Exhibit "1") 

20. On Petitioner's Application for Employment to Catawba County, dated November 18, 
1989 (Exhibit "3"), there is a line on the first page of that application after the space for the listing of an 
applicant's educational background, where the applicant is asked to "list fields of work for which you are 
licensed registered, or certified, giving date(s) and source(s) of issuance". Petitioner listed "Social Work- 
ACSW". No other information or dates were listed. 



9:4 NORTH CAROLINA REGISTER May 16, 1994 295 



CONTESTED CASE DECISIONS 



21. After Petitioner submitted an application to Catawba County for the Social Work 
Supervisor III position, Petitioner was called for an interview and did interview with Andrea Benfield, an 
administrator with the Catawba County Department of Social Services who ultimately became Petitioner's 
immediate supervisor. At no time during either that interview by Ms. Benfield with Petitioner nor at any 
other time during the hiring process did Ms. Benfield or anyone else on behalf of Catawba County make 
any inquiry of Petitioner regarding her ACSW certification or the "Social Work-ACSW" listing on her job 
application. 

22. Throughout Petitioner's employment by Catawba County Department of Social Services 
her ACSW membership certificates. Exhibit "11", which showed a November, 1978, membership entry 
date and a 1981/2 ACSW gold-colonsd sticker in the place usually used for annual membership stickers, 
was displayed in a frame in Petitioner's oflice. Both Andrea Benfield and Bobby Boyd were in 
Petitioner's office on multiple occasions during the course of Petitioner's employment by Catawba County 
Department of Social Services. TTie matter of Petitioner's ACSW certification or membership status was 
never mentioned to Petitioner by Ms. Benfield, Mr. Boyd, nor anyone else with Catawba County until the 
events described herein immediately prior to Petitioner's dismissal. 

23. Subsequent to her interview with Andrea Benfield, Petitioner received a telephone call 
from Ms. Benfield off'ering her employment as a Social Work Supervisor III with Catawba County. 
Petitioner initially declined to accept employment because of inadequacy of the salary. Petitioner 
subsequently received another telephone call from Ms. Benfield orally off'ering her the position at a higher 
salary. Petitioner orally accepted the position at the higher salary. 

24 Petitioner subsequently received a letter dated December 22, 1989, from Catawba County 

Department of Social Services Director Bobby K. Boyd (Exhibit "4") confirming her appointment as a 
Social Work Supervisor III. That letter states "You were selected because of our belief that you possess 
both a clinical and administrative perspective' The letter does not mention her being ACSW certified. 

25. Pursuant to normal Catawba County procedure, Petitioner was initially employed as a 
probationary employee. Later in 1990 Petitioner received permanent employee status with the Catawba 
County Department of Social Services. 

26. Throughout her tenure with Respondent Catawba County, Petitioner, in accordance with 
the regular persormel policies of Catawba County, was evaluated on a regular basis. Her evaluations were 
extensive and written and were conducted primarily by Andrea Benfield, Petitioner's immediate 
supervisor, and reviewed and approved by Bobby K. Boyd, Director of the Catawba County Department 
of Social Services. 

27. Based upon her evaluations. Petitioner received annual increments and merit pay on every 
occasion when she was eligible for same dunng the course of her employment by Catawba County. 

28. In the summer of 1992, Petitioner inquired of her supervisor Andrea Benfield and of 
department director Bobby Boyd regarding the possibility of her assuming custody of a 12-year old child 
who was then in the custody of the Catawba County Department of Social Services. The child was in the 
foster care program but the department had been unable to find permanent placement for the child. 
Department director Boyd reviewed the child's case with Petitioner and with the child's social worker and 
advised Petitioner that before she undertook to assume personal custody of the child that the department 
should make additional efforts to find permanent placement or adoption for the child outside of the 
agency. Petitioner accepted that decision from director Boyd and instructed the child's social worker to 
make additional efforts to find placement for the minor child. Petitioner was not removed from 
supervisory responsibility for the social worker handling the child's case. Multiple additional eff'orts were 
made over the next several months to find placement for the child either with adoptive parents, in a 
permanent foster care placement, or in a suitable group home. All of those efforts were unsuccessful. By 
the spring of 1993, the child was still in the Catawba County Receiving Home, a temporary care facility 
designed and licensed to keep children for no longer than ninety (90) days. 



296 9:4 NORTH CAROLINA REGISTER May 16, 1994 



CONTESTED CASE DECISIONS 



29. In March or April of 1993, in the normal course of her duties. Petitioner had occasion to 
discuss the case of this child with Angela Phillips, Distnct Administrator for the Guardian Ad Litem 
office. During the course of that conversation, Petitioner mentioned that some months earlier she had 
expressed her interest in personally providing a permanent home for this child. Petitioner was encouraged 
by the GAL administrator to again raise that issue with her supervisors within the Department of Social 
Services. The GAL administrator also stated her intent to raise with the Department the issue of the need 
for finding permanent placement for this child 

30. Petitioner wrote a memo to her supervisor, Andrea Benfield, dated May 4, 1993, (Exhibit 
"12") again expressing her interest in seeking custody of the minor child. 

31. On May 10, 1993, Ms. Phillips, the GAL program District Administrator, wrote to 
Catawba County Department of Social Services Director Boyd (Exhibit "13") expressing concern over the 
lack of permanent placement for the child who was by then thirteen (13) years of age, noting Petitioner's 
interest in assuming the custody and care of the child, and advising that the GAL office was "motioning 
the case into Court to explore this with the Judge". 

32. On May 17, 1993, Petitioner's supervisor, Andrea Benfield, met with Petitioner in 
Petitioner's office for a regular conference. At the end of that conference. Petitioner inquired of Ms. 
Benfield regarding the matter of her memo about the minor child because Petitioner had received no 
response to that memo. Ms. Benfield advised Petitioner that she (Ms. Benfield) and department director 
Bobby Boyd would make a decision about that matter when Mr. Boyd returned from vacation on May 24. 
Petitioner advised Ms. Benfield that she was inquiring about the matter because she knew that a hearing 
on the case was scheduled in the relatively near future and Petitioner needed to know whether or not she 
needed to employ an attorney. At that point, Ms. Benfield became very angry with Petitioner. Ms. 
Benfield inquired of Petitioner if Petitioner thought that she could take on the entire agency and told 
Petitioner that Petitioner had better decide whether or not Petitioner wanted to work for the agency. 

33. On May 24, 1993, Petitioner again met with her supervisor, Andrea T. Benfield, who 
brought up the matter of Petitioner's interest in providing a home for the subject minor child. Ms. 
Benfield called Petitioner unethical and unprofessional. Ms. Benfield told Petitioner that she intended to 
have Petitioner's ethics reviewed. Petitioner disagreed that she had acted unethically but agreed to a 
review of her ethics in the matter. 

34. On May 25, 1993, Petitioner had occasion to meet with Catawba County Staff" Attorney 
Carolyn Crouch who raised with Petitioner the matter of the GAL motion regarding the child's placement. 
Ms. Crouch advised Petitioner that while Petitioner's request was legal Ms. Benfield was concerned about 
the ethical propriety of Petitioner's interest in providing a home for the child. Ms. Crouch advised 
Petitioner to call around the state to see if there were any precedent for such a request. Ms. Crouch told 
Petitioner that Petitioner was the gutsiest woman she knew for taking on the Department over this issue. 

35. Petitioner talked with an attorney on the Attorney General's staff" who advises departments 
of social services across the state. Petitioner was advised that there was nothing illegal or unethical about 
Petitioner's request. Petitioner informed Ms. Crouch and Ms. Phillips, the GAL director, of what she had 
learned. 

36. On June 1, 1993, a Juvenile Court hearing on the issue of placement for the minor child 
was continued at the request of the Respondent Department of Social Services. 

37. On June 10, 1993, Andrea Benfield met with Petitioner and told Petitioner that because 
Ms. Benfield believed Petitioner had acted unethically Ms. Benfield had sought an ethical review by 
NASW, the National Association of Social Workers, but when she checked with NASW she had learned 
that Petitioner's membership had lapsed. Ms. Benfield then told Petitioner that Petitioner had been using 
the ACSW credentials dishonestly in that Ms. Benfield told Petitioner that it was dishonest to use the 
ACSW credentials and not pay the dues and have current membership. 



9:4 NORTH CAROLINA REGISTER May 16, 1994 297 



CONTESTED CASE DECISIONS 



38. Petitioner told Ms. Benfield then, and has since maintained, that Petitioner had taken the 
ACSW test and done all the necessary clinical work and had otherwise qualified for ACSW certification in 
1978 and that she had since paid dues, at least sporadically, for a number of years. Petitioner asserted 
that she knew of no dues-paying requirement in order to maintain ACSW certification, and that she had 
really not given any thought to the matter. 

39. Ms. Benfield again accused Petitioner of dishonesty and instructed Petitioner not to use 
the ACSW credentials as long as she still worked at the agency. Ms. Benfield said she would check with 
the county personnel office and see what they had to say about the matter. 

40. On June II, 1993, Petitioner called NASW and requested a membership reinstatement 
application. 

41. On June 14, 1993, Petitioner filled out a NASW membership reinstatement application 
and mailed it with a $165.00 check to the NASW oflJice in Washington, D.C., in order to be reinstated as 
a member. Petitioner sent a copy of same to Andrea Benfield. 

42. On June 14, 1993, Andrea Benfield met with Petitioner and asked Petitioner to consider 
moving to a job as supervisor of group homes for Respondent Department of Social Services. Andrea 
Benfield advised Petitioner that she could move to that position at no decrease in pay. Petitioner advised 
Andrea Benfield that she did not want to move to that position. Andrea Benfield asked her to think about 
it because of the Department's need for a person in that position with her ability and experience. Andrea 
Benfield did not mention the ACSW membership matter. 

43. In November of 1992, Respondent Department of Social Services had received approval 
from the County to divide Petitioner's Social Work Supervisor III job in charge of both foster care 
services and adoption services into two positions, both at the Supervisor III level. Since November of 
1992, the Respondent Department of Social Services had been recruiting unsuccessfully for someone to 
take one of the two newly created positions. Petitioner was told by Department of Social services director 
Bobby Boyd that she could have whichever of the two positions she wanted. Petitioner had requested the 
adoption supervisor's job and was told she could have that position when someone was found to take the 
foster care job. In the meantime Petitioner had continued to supervise both sections. 

44. In reliance upon the promises to her regarding her future employment with Catawba 
County, Petitioner turned down, in June of 1993, the offer of a job with the State of North Carolina as 
supervisor of the state's adoption services office. 

45. On June 16, 1993, Petitioner again met with Andrea Benfield and reiterated that she 
wanted the adoption supervisor's job. Andrea Benfield informed Petitioner that someone had been hired 
to do the foster care supervisor job. 

46. On June 23, 1993, Andrea Benfield met with the employees in Petitioner's unit and 
informed them that a person had been employed to take the foster care supervisor's job. 

47. On June 24, 1993, Andrea Benfield met with Petitioner and told Petitioner she had to take 
the group home supervisor's job. Transfer to that job would have been a demotion for Petitioner. 
Petitioner expressed her disappointment and unhappiness to Andrea Benfield. 

48 On June 30, 1993, Petitioner met again with Andrea Benfield who told Petitioner that she 

was being demoted to the Group Home Supervisor's position which was a Social Work Supervisor II 
position and would have to take a decrease in pay as a disciplinary action. 

49. On July 1, 1993, at 8:30 am, as Petitioner began to chair a regularly scheduled staff" 

meeting, Andrea Benfield gave Petitioner a letter (Exhibit "14") directing Petitioner to attend a 



298 9:4 NORTH CAROLINA REGISTER May 16, 1994 



CONTESTED CASE DECISIONS 



pre-disciplinary meeting that same day at 1:30 pm. m the County Personnel Office. It was not until the 
staff meeting ended after 11:00 a.m. that Petitioner had an opportunity to read the subject letter. 

50. The letter of July 1, 1993, Exhibit "14", advised Petitioner that the purpose of the 1:30 
p.m. meeting was to "review with you the reasons I feel a disciplinary demotion is in order". 

51. Petitioner did meet with Andrea Benfield and Catawba County Personnel Director Janith 
Huffman at 1:30 p.m. on July 1, 1993. Petitioner was again accused by Andrea Benfield of being 
dishonest and misrepresenting her credentials with respect to her ACSW certification. Petitioner repeated 
that she considered herself ACSW certified at all times since she first was certified in 1978; that she did 
not believe her payment or non-payment of dues affected her ACSW certification; that her non-payment of 
dues in recent years had not been intentional, just a matter of neglect; and that she had not intended to 
deceive or misrepresent by her use of the ACSW certification on job application or subsequently. 

52. By letter to Petitioner dated July 2, 1993, Andrea Benfield and Bobby K. Boyd stated "the 
offense of falsifying job information through the misrepresentation of your credentials is a dismissable 
one". In lieu of dismissal they offered Petitioner a demotion to the position of Social Work Supervisor II 
of Residential Child Care Services at Grade 71 with a salary decrease of 2.5%. Petitioner would have 
been placed on disciplinary probation for six months. Acceptance of the demotion in lieu of dismissal was 
stipulated to be non-grievable as it was said to be "offered as a settlement of your claims under ihe 
grievance process". Petitioner was advised that if she chose dismissal rather than the demotion she would 
forfeit her accrued leave in the amount of 217.18 hours. Petitioner was directed to advise the Respondent 
of her decision by July 12, 1993, or her termination would be deemed effective on July 9, 1993, at 5:00 
p.m. (See Exhibit "15") 

53. By letter to Andrea Benfield and Bobby Boyd of July 9, 1993, from Petitioner's attorney. 
Petitioner, inter alia , rejected Respondent's demotion option and stated her intention to grieve her 
dismissal pursuant to provisions of the Catawba County Code. (Exhibit "16") 

54. The Academy of Certified Social Workers (ACSW) is a part of NASW, the National 
Academy of Social Workers. Petitioner became a member of NASW as a graduate student. She was 
certified by ACSW in 1978 when she was living and working in South Carolina. Her best recollection is 
that she got an ACSW membership application from a co-worker and that she took the qualifying test, 
without prior preparation for it, somewhere in the Charleston area. 

55. Petitioner received a mailing from ACSW in December of 1978 wherein, inter alia , she 
was advised of her "successful completion of the assessment procedures for admission to the Academy of 
Certified Social Workers". She was told "You are now authorized to begin using the ACSW designation 
after your name ... ". She was advised "As a member of the Academy of Certified Social Workers, yo 
are expected to maintain the highest possible standards of professional performance, to adhere to the 
NASW Code of Ethics and to assume greater responsibility for support and advancement of the social 
work profession". (Petitioner's Exhibit "7"). 

56. Petitioner's Exhibit "8" is the NASW Code of Ethics enclosed with the letter. Petitioner's 
Exhibit "7". Petitioner's Exhibits "9" and "10" were the rest of the enclosures with that mailing. 

57. Nowhere among the documents mailed to Petitioner with her notification of ACSW 
certification was there any mention of any requirement that she continue to pay dues to NASW or ACSW 
as a condition of continuing certification or nght to use the ACSW designation. 

58. From the time that Petitioner became ACSW certified until she moved to North Carolina 
she lived at the same Summersville, South Carolina, residence where she received her notice of 
certification. 

59. Petitioner last paid dues to NASW in 1986 for a period ending sometime in 1987. 



9:4 NORTH CAROLINA REGISTER May 16, 1994 299 



CONTESTED CASE DECISIONS 



60. When Petitioner moved from South Carohna to North Carolina in December of 1986, she 
had four different addresses from December of 1986 until May of 1987. Petitioner does not remember 
sending notification of her various address changes to NASW. 

61. Petitioner testified at the hearing before the undersigned and at the July 1, 1993, 
pre-disciplinary meeting that she did not remember receiving any dues notices from NASW after she 
moved to North Carolina. She also testified before the undersigned that it is her practice to pay bills upon 
receipt of a statement therefor. 

62. Petitioner does not claim to have paid dues to NASW or ACSW since sometime in 1986. 
THE UNDERSIGNED FURTHER FINDS: 

63. Petitioner's dues to the Academy of Certified Social Workers (ACSW) were not currently 
paid when Petitioner submitted her job application to Catawba County. 

64. Catawba County's job application does not require that, nor inquire as to whether, an 
applicant's dues to professional organizations are currently paid. There is nothing in the job application 
which makes reference to being a dues-paying member of any organization. The application does not give 
any date{s) or source(s) of issuance for the "Social Work - ACSW" information supplied in the blank on 
page 1 of Exhibit "3" and Respondent County made no inquiry about the same when it was considering 
whether to employ Petitioner. 

65. There is nothing in the documents whereby the Academy of Certified Social Workers 
informed Petitioner of her ACSW certification and of her entitlement to use the ACSW designation that 
she had to make annual dues payments to the organization in order to continue to use that designation or 
to claim certification by ACSW. 

66. Beyond any doubt Petitioner was certified by ACSW in November of 1978 and was so 
certified at all times relevant to this case. 

67. That Petitioner had not paid annual dues to that organization for some time does not make 
her claim of ACSW certification false or misleading. 

68. Petitioner followed what the undersigned finds is the normal practice of most people who 
do not pay bills until they are received and Petitioner did not receive bills after she moved to North 
Carolina. Even if Petitioner did receive dues notices it is not remarkable for persons not to pay dues to 
professional or business organizations. 

69. Petitioner displayed on a wall in her office her ACSW membership certificate with the 
latest membership sticker being dated 1981/2. Clearly there was no intent on Petitioner's part to deceive 
anyone as to her membership status with ACSW. No one ever asked Petitioner about that certificate 
during the time she v,as employed by Catawba County. 

70. N.C.G.S. 126-30 provides the framework for the recommended decision in this case. 
TTiat statute provides, inter alia, that an employee such as Petitioner may be discharged if she knowingly 
and willfully disclosed false or misleading information about her job credentials which were significantly 
related to the job responsibilities of the position for which she was applying. 

71. The undersigned does not believe that Petitioner's non-payment of dues to ACSW and 
some question about whether or not she was technically entitled to use the ACSW designation was the 
reason why Petitioner was discharged from employment. 

72. Petitioner offered evidence that the reason given in the July 2, 1993, letter of dismissal, to 
wit. the alleged falsification of information on her job application, was not the real reason she was 



300 9:4 NORTH CAROLINA REGISTER May 16, 1994 



CONTESTED CASE DECISIONS 



dismissed but rather the real reason was her expressed interest in assuming custody of a minor child who 
was in foster care with Catawba County Department of Social Services. 

73. The undersigned can understand the Respondent Department's concern over an 
employee's seeking to assume custody of a child who was in the care of the department. The 
department's initial approach to the issue was reasonable. Department Director Boyd initially said no to 
the first inquiry in the summer of 1992 and directed more efforts to find permanent placement for the 
child. Additional efforts were made for several months but without success. The undersigned cannot 
understand the department's reaction after the GAL program motioned the child's case back into Court. 

74. Clearly the issue of Petitioner's non-payment of dues to ACSW is a pretext for the 
decision of department executives to discharge Petitioner because of Petitioner's expressed desire to 
assume custody of a child whom the department had been unable to place in a permanent foster care or 
group home situation. 

75. Respondent has the burden of proof to show by competent evidence that Petitioner did 
knowingly and willfully submit to Respondent false or misleading information about her job credentials 
which credentials were significantly related to the responsibilities of the position for which Petitioner was 
applying. Respondent chose to present no evidence in support of its position and has failed to meet its 
burden with respect to any of the statutory elements necessary to justify Petitioner's dismissal. 

76. The undersigned notes that among the first and last things which the undersigned did 
during the course of this hearing was to attempt to encourage a settlement of this case between the parties. 
From the position taken by Respondent at this hearing it is evident that no settlement is possible. 

77. The undersigned finds that Petitioner has lost wages and benefits as a result of her 
dismissal by Respondent. In particular the undersigned finds that when discharged Petitioner was earning 
a salary of $18.9335 gross per hour in Grade 73, Step 10 of the Catawba County Salary Schedule as it 
existed at that time. In addition. Petitioner received various employee benefits under Catawba County's 
employee benefit cafeteria plan. 

78. The undersigned specifically notes that according to Exhibit "15", Respondent's letter to 
Petitioner dated July 2, 1993, with her dismissal Respondent also took away from Petitioner already- 
earned leave in the amount of 217.18 hours. It is clear to the undersigned that since Petitioner had 
already earned that leave time she was and is entitled to be compensated for the same and the 
Respondent's refusal to so compensate Petitioner would appear to constitute the taking of Petitioner's 
property without due process of law. 

79. Petitioner's attorney Samuel H. Long, III, Esq., of Hickory, North Carolina, has rendered 
valuable assistance to her in this and related proceedings necessitated by Petitioner's dismissal. Because 
this matter is not yet concluded the undersigned did not direct Petitioner's attorney to submit a fee 
affidavit, but it would be appropriate for the State Personnel Commission to request one and to include a 
recommended award of attorney fees as a part of its decision in this case. 

WHEREFORE, BASED UPON THE FOREGOING FINDINGS OF FACT THE UNDER- 
SIGNED CONCLUDES: 

1. The undersigned Administrative Law Judge and the Office of Administrative Hearings 
have jurisdiction over this case by virtue of N.C.G.S 126 and G.S. 150Cb). 

2. The applicable substantive statute in this case is N.C.G.S. 126-30 and the undersigned's 
decision is restricted to that statute. 



9:4 NORTH CAROLINA REGISTER May 16, 1994 301 



CONTESTED CASE DECISIONS 



3. Respondent Catawba County and the Catawba County Department of Social Services 
failed to meet its burden of proof on any element of the showings necessary under G.S. 126-30 to justify 
the dismissal of Petitioner. 

4. Petitioner did not submit felse or misleading information to Respondent in order to secure 
employment with Catawba County. Whether or not Petitioner was a dues-paying member of ACSW when 
she applied to Catawba County, or whether or not Petitioner was then recognized by ACSW as being 
entitled to claim ACSW certification status was not a matter which was significantly related to the job 
responsibilities of the position for which Petitioner was employed. Even if there was from the perspective 
of NASW or ACSW some technical error in Petitioner's claim of ACSW certification status in 1989, 
Petitioner's claim of ACSW certification was not knowingly or willfully falsely made. 

5. Petitioner is entitled to reinstatement as an employee of Respondent in the same or a 
comparable position or commensurate damages, back pay (including all, across the board, annual, and 
merit pay increases which Petitioner could have received had she been employed since her dismissal, 
payment for her lost benefits including her accrued leave, and reasonable attorney fees for her lawyer). 

WHEREFORE, BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLU- 
SIONS OF LAW: 

The undersigned Administrative Law Judge makes this Recommended Decision for the Petitioner. 

1. That Petitioner be reinstated to her former or a comparable position or given appropriate 
compensatory damages for her prospective wage losses if she is not so reinstated. 

2. That Petitioner be paid for her lost wages, her lost benefits (including leave and such pay 
increases as have been available to Catawba County employees since Petitioner's dismissal, and payment 
of her reasonable attorney fees). 

This the 29th day of April, 1994. 



Robert Roosevelt Reilly 
Administrative Law Judge presiding 



302 9:4 NORTH CAROLINA REGISTER May 16, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



Ihe North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major de- 
partment in the North Carolina executive branch of government has been assigned a title number 
Titles are further broken down into chapters which shall be numerical in order. The other two, sub- 
chapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneeis 


4 


4 


Commerce 


Barber Exammers 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chircipractic Exammers 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dretetics/Nutrition 


17 


11 


Insurance 


Electncal Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Heanng Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


T flndscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Exammers 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursmg 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Persoimel 


Optometry 


42 


26 


Administrative Hearmgs 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examinere 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & I jind Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refngeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 


Note: Ti 


tie 21 contains the chapters of the varic 


3US occupational licensing boards. 




9:4 


NORTH CAROLINA REG 


ISTER May 16, 1994 


303 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 



Unless othenvise identified, page references in this Index are to proposed rules. 



AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Energy Division, 4 

CRIME CONTROL ANT) PUBLIC SAFETY 

State Highway Patrol. Division of, 243 

EN^VIRONMENT, HEALTH, ANT) NATURAL RESOURCES 

DEM/ Air Quality, 80 

Departmental Rules, 254 

Environmental Management, 81, 258 

NPDES Permit. 3, 232 

Solid Waste Management, 171 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84 

Wildlife Resources Commission Proclamation, 125 

FESTAL DECISION LETTERS 

Voting Rights Act, 2 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Facility Services, 4, 128 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36 

Social Services, 136 

INT)EPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board. 99 

EVSURANCE 

Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 



304 9:4 NORTH CAROLINA REGISTER May 16, 1994 



CUMULATIVE INDEX 



JUSTICE 

Criminal Justice Education and Training Standards Commission, 149 
State Bureau of Investigation, 234 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Cosmetic Art Examiners, 280 

Landscape Architects, Board of, 95 

Medical Examiners, 192 

Nursing, Board of, 45 

Optometry, Board of Examiners, 194 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281 

TRANSPORTATION 

Highways, Division of, 85 

Motor Vehicles, Division of, 89, 276 



9:4 NORTH CAROLINA REGISTER May 16, 1994 305 



NORTH CAROLINA ADMINISTRATIVE CODE 



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